UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A 

BRIEF    SURVEY 


OF 


EQUITY    JURISDICTION 


BEING   A   SERIES   OF  ARTICLES   REPRINTED    FROM 
THE    HARVARD    LAW    REVIEW 


BY 

C.  C.   LANGDELL,    LL.D. 

Dane  Professor  of  Law  in  Harvard  University,  Emeritus 


SECOND   EDITION,   ENLARGED 


CAMBRIDGE 

THE   HARVARD   LAW   REVIEW   ASSOCIATION 

1908 


T 

Copyright,  1S87,  1S88,  1889,  1890,  1S91,  1892, 
By  The  Harvard  Law  Review  Publishing  Association. 

Copyright,  1896,  1900, 
By  the  Trustees  of  the  Harvard  Law  Review. 

Copyright,  1904,  1905,  1906,  1908, 
By  The  Harvard  Law  Review  Association. 


THE    UNIVERSITY    PRESS,    CAMBRIIGE,    U.S.A. 


PUBLISHERS'    NOTE. 

Professor  Langdell's  articles  upon  Equity  Jurisdiction, 
which  have  appeared  from  time  to  time  in  the  "  Harvard 
Law  Review,"  have  formed,  for  several  years,  part  of  the 
course  in  Equity  at  the  Law  School  of  the  University  of 
New  York.  To  make  these  essays  more  accessible  to  his 
students,  Dean  Ashley  of  that  School  suggested  that  they 
be  brought  together  in  a  volume.  In  complying  with  this 
suggestion,  in  1904,  the  publishers  were  confident  "hat 
they  would  gratify,  also,  the  unexpressed  wish  of  tl-  )se 
who  had  the  good  fortune  to  begin  their  study  of  Eqi  ity 
under  the  personal  guidance  of  Professor  Langdell,  nd 
of  many  other  lawyers  as  well. 

The  book  in  its  present  form  contains  five  arti  les 
written  in  the  last  years  of  the  author's  life,  and  a  caref  lly 
prepared  index. 

The  reader  will  find  in  this  volume  the  same  powe  of 
historical  research,  of  critical  analysis,  and  of  illumii  at- 
ing  generalization  that  distinguished  Professor  Langdt  I's 
"  Summary  of  Equity  Pleading,"  a  book  recognized  at  t  ce 
as  the  work  of  a  great  master  of  the  law. 

Cambridge,  October  i,  1908. 


648281 


CONTENTS 

Table  of  Cases ^^^ 

A   BRIEF   SURVEY   OF   EQUITY   JURISDICTION 
Article  ^^^^ 

I.    Classification  of  Rights i 

II.    Classification  of  Wrongs i9 

III.  Specific  Performance 4° 

IV.  Bills  for  an  Account 73 

V.    Bills  of  Equitable  Assumpsit 99 

VI.    Creditors'  Bills 125 

VII.    Creditors'  Bills  (^continued) i54 

VIII.    Real  Obligations 192 

IX.    Classification  of  Rights  and  Wrongs     ...  219 

X.  Classification  of  Rights  and  Wrongs  {continued)  239 

XI.  Equitable  Conversion 260 

XII.    Equitable  Conversion  {continued') -  282 

XIII.  "              "                  "       ^^-^ 

XIV.  "             "                "      330 

XV.               "                  "                       "         359 

XVI.               "                  "                       "         377 

XVII.              "                  "                       "         394 


Index 


409 


TABLE    OF    CASES. 


Anms  V.  Winter 
Abell  V.  Screech 
Ackroyd  v.  Smithson       264, 

334, 
Adams  and  the  Kensington 

In  re 
Alleyn  v.  Alleyn 
Allfreyz'.  Allfrey 
Ambler  v.  Lindsay 
Amphlett  v.  Parke 
Angell  V.  Haddon 
Angus  V.  Dalton 
Anonymous  (i  Leon.  266) 

(keilw.  77  a,  77  b,  pi.  25) 

(II  Mod.  92) 

(Gary  (ed.  of  1S20),  29) 

(Dyer,  264b) 

(Dyer,  271  a,  pi.  25) 

(I  Atk.  491) 

(3  Atk.  572) 

(12  Ves.  4) 

V.  Marsh 
Apsden  v.  Seddon 
Arnold  v.  Chapman 
Ashby  V.  Palmer 

V.  Pocock 

V.  White 
Atcherley  v.  Vernon 
Atherley  v.  Evans 
Attorney  General  v.  Holford 

V.  Lomas 
Austerberry  v.  Oldham 


Backwell's  Case 

Bagster  v.  Fackerell 

Baker  v.  Hall 

Baldwin  v.  Society 

Bank  of  England  v.  Morice 

Banks  v.  Scott 

Barker  v.  May 

V.  Rogers 

V.  Thorold 
Barrett  v.  Blagrave 
Barrington  v.  Hereford 
Barry  v.  Stevens 
Basset  v.  Basset 
Batteste  v.  Maunsell 
Baxter  v.  Hozier 
Bayley  v.  Adams 
Baynton  v.  Cheek 
ISeauclerk  v.  Mead 
Bective  v.  Hodgson 


PAGE 

PAGB 

174 

Bedford  v.  Bedford 

342 

181 

V.  Leigh 

185,    187 

300. 

330.   333. 

Benson  v.  Baldwyn 

213 

335 

-358.  359 

V.  Benson 

384.  399 

Ves 

try, 

Berkeley  v.  Salisbury 

213 

270,  271 

Berry  v.  Usher 

342.  349 

3'i 

Biddulph  V.  Biddulph 

386 

390.  403 

120 

Biggs  V.  Andrews 

369 

370,  391 

186 

Bishop  of  Winchester  v. 

Kn 

ght 

39 

288,  292 

Bissell  -'.  Axtell 

i=;6 

160 

Blakemore  v.  Glamorganshi 

re  Canal 

246,  247 

Go. 

•  37 

80 

Bonomi  v.  Backhouse 

24S 

85 

Boreman  v.  Yeat 

2'3 

87 

Bourne  v.  ]>ourne 

266 

95 

15ovven  v.  Hall 

3,  6,  241 

98 

Bradish  v.  Gee 

403 

'51 

Brandlin  v.  Millbank 

146 

156 

Brett  V.  Shipping  Go. 

70,71 

16S 

Briggs  V.  };.  &  L.  R.  Co. 

197 

178 

Hrooks  V.  Reynolds 

175.  176 

383 

Broome  v.  Monck 

310, 

3".  3'4 

209 

Brown  v.  Brown 

403 

190 

286,  2S7 

V.  Lake 

160 

373 

Buccle  V.  Atleo 

179 

174 

Bunnelt  v.  Foster 

350 

225 

Burgh  V.  Wentworth 

82 

385 

Burley  v.  Evelyn 

288 

124 

Burney  v.  Morgan 

183 

349.  351. 

Busby  V.  Earl  of  Salisbury 

213 

356,  357 

Husfield  V.  Wheeler 

197 

2S0 

348,  351 
255 

Byam  v.  Munton 
Callander  v.  Howard 

297 

"3.  124 

180 

Calthrope  v.  Gough 

399 

342 

348,  358 

Garter  v.  Haswell 

279 

290 

Gatchside  v.  Ovington 

139 

72 

Catt  V.  Tourle 

69.  72 

136.  142 

Crabtree  v.  Bramble 

403 

266 

Croft  V.  Slee 

2S9 

f 

Cruse  V.  Barley 

286 

334, 

342,  346 

182 

Champernoon  v.  Gubbs 

213.  214 

75 

Chandler  v.  Pocock 

372, 

374,  387 

71 

Chaplin  v.  Horner     324, 

382,  383.  39S,  399 

290 

Chelsea  Water  Works  C 

0.  V. 

Cow 

per     I 6? 

92 

Chitty  V.  Parker 

279 

156 

Christian  v.  Foster 

342 

390 

Clark  V.  Glasgow  Assurance 

Go. 

66,  209 

96 

Clarke  -'.  Earl  of  Ormonde 

176,  177 

109 

V.  Franklin 

329 

358. 

371,395 

98 

V.  Price 

72 

330.  350 

Cleverley  v.  Gleverley 

176 

339 

Cocket  V.  Robston 

81 

VIU 


TABLE  OF  CASES. 


Cocks  V.  Foley 

213 

Cogan  V.  Stephens 

334 

V.  Stevens 

355 

Coleman  v.  Mellersh 

120 

Collet  V.  Jaques 

213 

Collett  V.  Collett 

399 

CoUingwood  v.  Row 

269 

Collins  V.  Wakeman 

2S8,  333 

Coliinson  v.  Ballard 

169 

Colwall  V.  Shadwell 

3S2,  399 

Commonwealth  v.  Berry 

79 

V.  Foster 

92.93 

V.  Stearns 

92 

Cook  V.  Duckenfield 

279 

V,  Stationer's  Co. 

283,  290 

Cooke  V.  Dealey 

302 

Coombes  v.  Mansfield 

64 

Cooper  V.  Jarman 

315 

Cooper's  Trusts,  In  re 

290 

Coppin  V.  Coppin 

311 

Cory  V.  Thames  Iron  Works  &  Ship- 

building Co. 

43.45 

Couch  V.  Steel 

225,  240 

Counter  v.  Macpherson 

60 

Court  V.  Buckland 

29S,  300 

Coventry  v.  Coventry 

390 

Cowper  V.  Blissett, 

185 

Coysgarne  v.  Jones 

178 

Cunningham  v.  Moody 

382.  398 

Cupit  V.  Jackson 

214 

Curre  v.  Bowyer 

176,312 

Curteis  v.  Wormald 

275.  355 

Dale  v.  Sollet 

89 

Darby  v.  Uarby 

364 

Davenhill  v.  Fletcher 

190 

Daveson,  In  re 

281,  393 

Davie  v.  Beardsham 

385 

Davies  v.  Ashford 

403 

V.  Churchman 

152 

V.  Nicolson 

161 

V.  Topp 

150 

Davis  V.  Combermere 

179 

V.  Johnston 

95 

Davy  V.  Davy 

^  "^ 

V.  Pepys 

146,  152 

Day,  In  re 

>-  315 

Dawson  v.  Dawson 

120 

Dean  &  Chapter  of  Exeter  v. 

T  re  win- 

nard 

1 38 

Deeth  v.  Hale 

327 

Demandray  v.  Metcalf 

198 

Dent  V.  Dent 

98 

Devaynes  v.  Noble 

"5 

Dietrichsen  v.  Cabbum 

69,70,71 

Digby  V.  Legard                 334 

336,  340,  369 

Dinwiddie  v.  Bailey 

90,  94,  108 

Dixon  V.  Dawson 

265 

V.  Gayfere 

403 

Doane  v.  Russell 

197 

Dollond  V.  Johnson 

174 

Donnell  v.  Bennett 

70.71 

Dorchester  v.  Webb 

136 

Doughty  V.  Bull 

354,  390 

Douglas  V.  Clay 

175 

PAGE 

Dowdeswell  v.  Dowdeswell  186 

Drant  v.  Vause  270 

Duke  of  Bridgewater  v.  Edwards  213 

Duke  of  Cleveland's  Settled  Estates, 

In  re  372,  375,  3S6 

Duke  of  Leeds  v.  New  Radnor  213 


V.  Powell 
Duncuft  V.  Albrecht 
Duppa  V.  Mayo 
Durour  v.  Motteux 
Dyer  v.  Dyer 

V.  Kearsley 


213 

48 
203 

296,  300,  333. 11^ 
302 
177 


Coventry 


Earl  of  Coventry 

Eason  v.  Henderson 

Edwards  v.  Countess  of^Warwick  32 


V.  West 
Elliott  V.  Fisher 
Emblyn  v.  Freeman 
Emuss  V.  Smith 
Erving  v.  Peters 
Eyre  v.  Marsden 
Evre's  Case 


Farley  v.  Craig 
Farnham  v.  Burroughs 
Farrell  v.  Smith 
Farrington  v.  Lee 
Ferrers  v.  Tanner 
Ferris  v-  Newby 
Field  V.  Brown 
Fielden  v.  Fielden 
P'inch  z/.  Winchelsea 
Fitch  V.  Weber 
Fitzpatrick  v.  Mahoney 
Fladong  v.  Winter 
Flamang's  Case 
Flanagan  v.  Flanagan 
Fletcher  v.  Ashburner 

V.  Chapman 
Flint  V.  Warren 
Foley  V.  Hill 
Fothergill  v.  Rowland 
Fryer  v.  Royle 
Fulham  v.  Jones 


390 

95 

323. 

400 
270 

395 
286,  334 
270,  271 
130 
342 
402 


205 
186 
160 

87 
212 
212 

301 

179 

166 

347 
121 


342 


159 

31 

264 

333.  355.  356 

342,  348,  356,  369 

92,  94,  108 

70,  71,  72 

185 

360 


Gardner  v.  Railway  Co. 
Gardner's  Trusts,  In  re 
Garnett  v.  Acton 
Gaunt  V.  Taylor 
Gawton  v.  Lord  Dacres 
Gibbs  V.  Ougier 
V.  Rumsey 
Gibson  v.  Lord  Montfort 
Gillespie  v.  Alexander 
Gilpin  V.  Lady  Southampton 
Godfrey  v.  Saunders 
Cloodall.  In  re 
Goodwyn  v.  Lister 
Gordon  v.  Atkinson 
Gordon,  In  re 


309, 


236 
266 

309.311 

174 

85 

189,  360 
342 

37S,  385 
161 

171,  176 

76 

273 

379 

342 

403.  40s 


TABLE  OF  CASES. 


IX 


Graves's  Minors 

Greaves's  Settlement  Trusts 

Green  v.  Farmer 

V,  Jackson 

V.  Smith 
Greenhill  v.  Greenhill 
Greenwood  v.  Taylor 
Greig  v.  Somerville 
Griesbach  v.  Freemantle 
Griffith  V.  Ricketts 
Griffiths  V.  Anthony 

V.  Pruen 
Golder  v.  Golder 
Guidot  V.  Guidot 


PAGE 

273 

,  In  re       yjz, 

375.  386 
I II 

292.  339 
310 

3'^5 
187 
161 
403 

369.  370.  395 
>39 
297 
184 

304,  386,  390 


Hackwell  v.  Eastman 

96 

Hamilton  v.  Foote 

342 

348 

.  357.  369 

Hamond  v.  Ward 

123 

Hancocke  v.  Prowd 

135 

Hanson  v.  Gardiner 

31 

V.  Stubbs 

174 

Harcourt  v.  Seymour   , 

403 

Hardcastle  v.  Chettle 

177 

Hardey  v.  Hawkshaw 

364 

Hardy,  Ex  parte 

354 

Harrison  v.  Beecles 

137 

Hart  V.  Herwig 

49 

Hartley  v.  Pendarves 

301 

Harvey  v.  Harvey 

181 

Haslewood  v.  Pope 

189,  190 

Hatfield  v.  Prime 

329. 

342,  34S, 
356 
172 

Hawkes  v.  Barrett 

Hawkins  v.  Parker 

75 

Haynes  v.  Haynes 

225 

Hayward  v.  Constable 

172 

Haywood  v.  Brunswick 

building  Soc.    209, 

255 

Henchman  v.  Attorney- 

General 

286,  287 

Henderson  V.  French 

iw 

Henley  v.  Webb 

382,  3S3,  384 

Henningham's  Case 

146 

Heptinstall  v.  Gott 

290 

Hereford  v.  Ravenhill 

390 

Hewitt  V.  Wright 

287 

Hill  V.  Cock 

339 

342 

355.  369 

Hills  V.  Croll 

69,70,  71 

Hinde  v.  Lyon 

146,  147 

Hinton  v.  Parker 

139 

Holstcomb  V.  Rivers 

82,  90 

Holt  V.  Holt 

3'4 

Hood  V.  Hood 

311 

Hooper  v.  Brodrick 

71.72 

V.  Goodwin 

345.  349.  350,  362 

Hopkins  v.  Hopkins 

339 

Horner's  Estate 

266 

Horrell  v.  Waldron 

156 

Howard  v.  Howard 

156 

Hudson  V.  Cook 

3" 

Hughes  V.  Morris 

62 

Humphries  v.  Brogden 

221,  246 

Hutcheson  v.  Hamraonc 

287,  291 

Hyett  V.  Mekin 

354,  366 

Ingersoll  v.  Sergeant 
Irby  V.  Irby 
Isaacs,  /«  re 


Jackson  v.  Harrison 

V.  Hurlock 

V.  Leaf 
Jaques  v.  Miller 
Jemott  V.  Cawley 
Jennings  v.  Rigby 
Jermy  v.  Preston 
Jessopp  V.  Watson  329, 

Johnson  v.  Compton 

V.  Woods 
Jones  V.  Davies 

V.  Jukes 

V.  Mitchell 

V.  Newhall 


Kemble  v.  Kean 
Kemp  V.  Westbrook 
Kenuell  v.  Abbott 
Kennington  v.  Houghton 
Kenyon  v.  Worthington 
Kimberley  v.  Jennings 
King  V.  Rossett 

V.  Smith 
King,  Ex  parte 
Kinsman  v.  Barker 
Kirkham  v.  Peel 
Kirkman  v.  Miles 
Knight  V.  Knight 


Lady  Fohane's  Case 
Lamine  v.  Dorrell 
Lane  v.  Newdigate 
Langford  v.  I'itt 
Lashley  v.  Hogg 
Law  V.  Rigley 
Lawes  v.  Bennett 


PAGE 

209 

»75 
270 


203 
290 
178 

43 
203 

174 

267 

342,  346,  34S, 

356.  369 
185 

342,  347 
266 

175 
288,  291 

50 


69,71 

198 

291,  296 

108 

176 

69.71 

92,  108 

187 

402 

121 

92 

390,  403 

152 

3is 

37 

160 

178 
269,  270 


Lechmere  v.  Earl  of  Carlisle  322,  323,  390, 

405 
Lee  V.  Bowler  82 

Leonard  v.  Simpson  130 

Lincoln  v.  Parr  87 

Lingen  v.  Souroy  321,  323,  383,  403 

Liverpool  Borough  Bank  v.  Turner  64 

Livingstone  z.  Whiting  113 

Lockhart  v.  Hardy  159 

London  &  Great  Western  Ry.  Co.  v. 

Gomm  255 

Lord  Castlemaine  v.  Lord  Craven  60 

Lord  Dacres'  Case  85 

Lumley  v.  Gye  3,  6,  241 

V.  Wagner  69,  70,  71 

Lytton  V.  Railway  Co.  47 


Mackenzie  v.  Johnston  92 

Makepeace  z'.  Rogers  91,  112 

Mallabar  v.  Mallabar        296,  300,  -^tH,  336 
Mara  v.  Quin  139 


TABLE  OF  CASES. 


Martin  v.  Martin 

Marv  Shipley's  Case 

Mary  Smith's  Mortgage  Account, 

Mason  v.  Bogg 

V.  Hill 
Matthews  v.  Newby 
Maugham  v.  Mason  279,  296 

May  V.  King 
V.  Selby 
McCalmont  v.  Rankin 
McKellar  v.  Wallace 
M'Mahon  v.  Burchell 
Meek  v.  Devenish 
Meredith  v.  Vick 
Michael  Dent's  Case 
Mills  V.  Haywood 
Milner  v.  Mills 
Milnes  v.  Branh 
Mihvard  v.  Ingram 
Mitchell  V.  Dors 
Mitchelson  v.  Piper 
Morrice  v.  Bank  of  England 
Morris  v.  Colman 
Moxon  V.  Bright 
Mutlow  V.  Bigg 


Neale  v.  Gripps 

Neve  V.  Weston 

Newberry's  Trusts,  In  re 

Newman  v.  Norris 

Nicholas  v.  Nicholas 

Nicolls  V.  Crisp 

Noel  V.  Lord  Henley 

Noell  V.  Nelson 

Norman  v.  Haldry 

N<irth  V.  Strafford 

N.  E.  Railway  Co.  v.  Martin 

Ogle  v.  Cook 
Onslow's  Case 
Owston  V.  Ogle 


PAGE 

185,  186 

135 

In  re  266 

187 

245 

156 

,  342,  356. 

369,  390 

124 

185 

64 

119 

95 
403 
403 

96 

53 

309.311 

209 

124 

31 

175 

173,  180 

71 

94.  loS 

403 


182 
290 

179 
156 

369 
291 

13s 

158 

213 
IC9 


333 
402 

75 


Padwick  v.  Stanley  108,  112 

Page  t>.  Denton  142 

V.  Leapingwell  284,  291,  296 

Paine  v.  Meller  60,  62 

Palmer  v.  Waller  130 

Pamplin  v.  Green  155 

Parker  v.  Dee  142,  143.  M4 

Paschall  v.  Keterich  81,  98 

Paxton  V.  Douglas  171,  172,  176,  177 

Pearson  v.  Lane  382,  391 

Pedder's  Settlement,  In  re                       268 

Pembroke  v.  Bowden  360 

Perry  v.  Attwood  117,  119.  122 

V.  Phelips          A  175.  '76 

Peto  V.  Railway  Co.  7° 

Phillips  V.  Homfrey  39 

z/.  Phillips  108,112,342,356 

Pickering  v.  Lord  Stamford  279 

Pierce  v.  Clark  84 

Pigot  V.  Cubley  196 

Pigott  V.  Nower  142,  i43'  '44 


PAGE 

VWtor^,  Ex  parte  206 

Pitt  V.  Cholmondeley  120,  121 

Plunket  V.  Penson  152,  186 

Ponsford  v.  Hartley  185 

Poole  V.  Adams  60 

Pott  V.  Gallini  178,  189 

Potter  V.  Potter  385 

Poulter  V.  Cornwall  87 

Powell  V.  Wallworth  172 

Powlett  V.  Duchess  of  Bolton  302 

Pratt  V.  Tuttle  94 

Prideux  v.  Gibben  385 

Pulteney  v.  Warren  39 

Pultney  v.  Darlington  405 


QuARLES  V.  Capell  152 

Queen  &  Painter's  Case  81 


Radci.iffe,  Matter  of  178 

Raikes  v.  Hall  187 

Ramsden  v.  Jackson  130 

Randall  v.  Bookey  278 

Rayner  v.  Preston  60,  64 

V.  Stone  315 

Raw,  In  re  354 

Reeve  v.  Goodwin  170 

Reeves  v.  Ward  136 

Reynolds  v.  Godlee  275,  355 
Richerson,  In  re                 329,  342,  348,  357 

Ripley  v.  Waterworth  269 

Roades  z'.  Barnes  124 

Roberts  v.  Eberhardt  97 

Robinson  v.  Bell  152 

V.  London  Hospital  342 

V.  Lord  Byron  37 
V.  Taylor                      265,  342,  344,  3";5 

Robsert  v.  Andrews  84 

Rock  V.  Leighton  130 

Rolfew.  Rolfe  69,71 

Rolt  V.  Somerville  37 

Rook  V.  Worth  V^ 

Roper  V.  Radcliffe  368 

Rowbotham  v.  Wilson  246 

Rowsell  V   Morris  186 

Rush  V.  Higgs  179 

Rushleigh  v.  Master  385 


Salisbury  v.  Cecil 
Salt  V.  Chattaway 
Schomberg  ?•.  Humfrey 
Scott  V.  Surman 
Searle,  /«  re 
Seeley  v.  Jago 
Shallcross  v.  Wright 
Sheddon  v.  Goodrich 
Shewen  v.  Vanderhorst 
Short  V.  Wood 
Shute  V.  Mallory 
Simmons  v.  Pitt 
Sims  V.  Ridge 
Singleton  v.  Tomlinson 
Sir  Paul  Neal's  Case 
Sir  Wm.  Harbert's  Case 


262, 
382. 


91 
290 

150 
92 

390 

327 
342,  3^6,  369 

345.  349.  350 
159 

391.399.  402 
212 
289 
172 
298 

87 
144,  14S,  151 


TABLE  OF  CASES. 


XI 


Sir  W.  Pelham's  Case 
Sisson  V.  Giles 
Skey  V.  Bennett 
Smith  V.  Angel 

V.  Birch 

V.  Claxton 

V.  Collyer 

V.  Fromont 

V.  Haskins  Stiles  Eyles 

V.  l^eveaux 
S.  E.  Railway  Co.  v.  Brogden 
Speake  v.  Richards 
Spencer  v.  \\  ilson 
Spode  V.  Smith 
Sjjurravvay  v.  Rogers 
Stamper  v.  Millar 
Stent  V.  liailis 
Stileman  v.  Ashdovvn 
Stocker  v.  Wedderburn 
Stokes  V.  City  Ottices  Co. 
Stokes,  In  re 
Stonehouse  v.  Evelyn 
Storer  v.  Railway  Co. 
Stratford  v   Ritson 
Sumner  v.  Kelly 
Sutcliffe  V.  Cole 
Sutton  V.  Lord  Montfort 
Swallow  V.  Wallingford 
Sweetapple  v.  Bindon 


Si 

403 

1S3,  1^7 

146,  147 

174 

329,342,345.355.  35« 

3' 


97. 


174 

loS 


151. 


109 

9S 

297 

172 

75.82 

354 
60 

152 
70 

34 
364 
278 

47 
150 
1 86 
290 
248 

69 
360,  361 


Taff  Vale  Railway  Co.  v.  Nixon  108 

Taylor  v.  Taylor  342,  34S 

Taylor's  Settlement,  In  re  342,  348,  354, 

35S 

Teed  v.  Beere  182 

Telford  v   Morison  139 
Thames  Iron  Works  &  S.  Co.,  Lt.  v. 

P.  D.  Co.,  Lt.  19S 

Thomas  v.  GritiSth  1S2 

V.  Heathorn  124 

V.  Oakley  31,  39 

V.  Thomas  88,  95 

Thomas,  In  i-e  310 

Thorndike  v.  AUington  213 

Thornton  v.  Hawley  390 

Tooker  v.  Annesley  301 

Topham  v.  Braddick  75 

Tottenham  v.  Bedingfield  80,  Si 

Townley  v.  Bedwell  269 

Trafford  -v.  Boehm  304,  400 


Trower  v.  Knightley 
Tucker  v.  Kayess 
Tulk  v.  Moxhay 


VANIiROUGH    V.   Cock 

Vandergee  v.  Willis 
Vane  v.  Lord  Barnard 
Van  Rennselaer  v.  Hays 
Vere  v.  Smith 
Vernon  v.  Vawdry 


Waite  v.  Waite 

Walker,  Ex  parte 

Wall  V.  Colshead 

Walrond  v.  Rosslyn  321,  323, 

Walter  v.  Maunde 

Waring  v.  Danvers 

Watson  V.  Arundel 

V.  Haves 
Webb  V.  VVebb 
Wedderburn  v.  Wedderburn 
Weeding  v.  Weeding 
Wells  7'.  Ross 
Wheatley  v.  Lane 
Wheeler  v.  Home 
Wiiite  V.  Hillacre  183, 

V.  Smith  342,  348, 

Whiitaker  v.  Howe 

V.  Whittaker 
Whitwick  V.  Jermin 
Wildes  V.  Davits 
Wilkin  V.  Wilkin 
Wilkyns  v.  Wilkyns 
William  Banes'  Case 
Williams  v.  Williams  69, 

Wilson  V.  Coles  265,  342, 

V.  Fielding 

V.  I'aul 
Wiseman  v.  Roper 
Wolverhampton  &  Walsall  Ry.  Co 

L.  &  N.  W.  Ry.  Co. 
Woodgate  v.  Field 
Worraker  v.  Pryer 
Wright  V.  Howard 

V.  Rose 

V.  Row 

V.  Wright 
Wrightson  v.  Macauley 


PAGB 


198 

37 

202 

75,84 
120 


181 

270 

351.357 

372,  374 

263 

178 

298,  300 

2S8 

212 

120 

270,  271 

93 

131 

96 

185,  187 

351,  357 
69 

360 
299 

75 
83 

130 

174.  342 

34S,  356 

1 89 

179 

52 

.  V. 

71.72 
170 
185 
245 
266 
2S9 
349,  355 
390 


A    BRIEF    SURVEY   OF    EQUITY 
JURISDICTION. 


Classification  of  Rights. 

EQUITY  jurisdiction  is  a  branch  of  the  law  of  remedies ;  and 
as  it  affects,  or  is  affected  by,  nearly  the  whole  of  that  law, 
it  is  impossible  to  obtain  an  intelligent  view  of  it  as  a  whole  with- 
out first  taking  a  brief  view  of  the  law  of  remedies  as  a  whole. 
Moreover,  as  all  remedies  are  founded  upon  rights,  and  have  for 
their  objects  the  enforcement  and  protection  of  rights,  it  is  impos- 
sible to  obtain  an  intelligent  view  of  remedies  as  a  whole,  without 
first  considering  the  rights  upon  which  they  are  founded. 

Rights  are  either  absolute  or  relative.  Absolute  rights  are  such 
as  do  not  imply  any  correlative  duties.  Relative  rights~are  'such 
as  do  imply  correlative  duties. 

Absolute  rights  are  of  two  kinds  or  classes  :  First,  those  rights 
of  property  which  constitute  ownership  or  dominion,  as  distin- 
guished from  rights  in  the  property  of  another, — Jura  in  re  aliena  ; 
secondly,  personal  rights  ;  i.e.,  those  rights  which  belong  to  every 
person  as  such. 

Relative  rights,  as  well  as  their  correlative  duties,  are  called 
obligations  ;  i.e.,  we  have  but  one  word  for  both  the  right  and  its 
correlative  duty.  The  creation  of  every  obligation,  therefore,  is 
the  creation  of  both  a  right  and  a  duty,  the  right  being  vested  in 
the  obligee,  and  the  duty  being  imposed  upon  the  obligor.  Un- 
doubtedly the  word  "  obligation  "   properly   expresses  the  duty, 

1  I  Harv.  L.  Rev.  55. 
I 


2  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

and  the  use  of  the  same  word  to  express  the  right  is  a  defect  of 
nomenclature  which  is  unfortunate,  as  it  has  given  rise  to  much 
confusion  of  ideas. 

ObHgations  are  either  personal  or  real,  according  as  the  duty  is 
imposed  upon  a  person  or  a  thing.  An  obligation  may  be 
imposed  upon  a  person  either  by  his  own  act,  namely,  by  a  con- 
tract, or  by  act  of  law.^ 

An  obligation  may  be  imposed  upon  a  thing  either  by  the  will 
of  its  owner,  manifested  by  such  act  or  acts  as  the  particular 
system  of  law  requires,  or  by  act  of  law.  It  is  in  such  obligations 
that  those  rights  of  property  originate  which  are  called  rights  in 
the  property  of  another, — jura  in  re  alicna.  Instances  of  real 
obligations  will  be  found  in  servitudes  or  easements,  in  which  the 
law  regards  the  servient  tenement  as  owing  the  service  ;  also  in  the 
Roman  pigfius  and  hypotheca,  in  which  the  res,  pignorated  or 
hypothecated  to  secure  the  payment  of  a  debt,  was  regarded  as  a 
surety  for  the  debt.  The  pignus  has  been  adopted  into  our  law 
under  the  name  oipawn  ox  pledge.  The  hypotheca  has  been  rejected 
by  our  common  law,^  though  it  has  been  adopted  by  the  admi- 
ralty law.  A  lien  is  another  instance  of  a  real  obligation  in  our 
law,  the  very  words  "lien"  and  "obligation,"  having  the  same 
meaning  and  the  same  derivation.  A  familiar  instance  of  a  real 
obligation  created  by  law  will  be  found  in  the  lien  of  a  judgment 
or  recognizance.^ 


1  Strictly,  every  obligation  is  created  by  the  law.  When  it  is  said  that  a  contract 
creates  an  obligation,  it  is  only  meant  that  the  law  annexes  an  obligation  to  every  contract. 
A  contract  may  be  well  enough  defined  as  an  agreement  to  which  the  law  annexes  an 
obligation. 

Strictly,  also,  a  tort  gives  rise  to  an  obligation  as  much  as  a  contract ;  namely,  an 
obligation  to  repair  the  tort  or  to  make  satisfaction  for  it ;  but  this  is  an  obligation  which 
the  law  imposes  upon  a  tort-feasor  merely  by  way  of  giving  a  remedy  for  the  tort.  In 
the  same  way  the  breach  of  a  contract  gives  rise  to  a  new  obligation  to  repair  or  make 
satisfaction  for  the  breach. 

2  It  would,  however,  be  more  correct  to  say  that  our  law  does  not  permit  the  owner 
of  property  to  hypothecate  it  at  his  own  will  and  pleasure;  for  hypothecations  created 
by  law  do  exist  with  us,  as  will  presently  be  seen. 

3  Such  a  lien  is  an  hypothecation  created  by  law.  It  is  what  civiHans  call  a  general 
hypothecation,  because  it  attaches  to  all  the  land  of  the  judgment  debtor  or  recognizor, 
whether  then  owned  by  him  or  afterwards  acquired. 

Instances  of  hypothecations  of  goods  created  by  law  will  be  found  in  the  lien  given  to 
a  landlord  on  the  goods  of  his  tenant  to  secure  the  payment  of  rent,  and  in  the  lien  on 
beasts  darnagc  feasant,  given  to  the  person  injured  to  secure  satisfaction  for  the  injury 
done.  These  liens  are  enforced  by  distress.  The  former  is  in  a  sense  general;  i.e.,  it 
attaches  on  all  the  goods  which  are  on  the  demised  premises  when  the  rent  becomes  due. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOiY.  3 

Relative  rights  differ  from  absolute  rights  in  this,  that  the 
former  add  nothing  to  the  sum  or  aggregate  of  human  rights ; 
for  what  an  obligation  confers  upon  the  obligee  is  precisely 
commensurate  with  what  it  takes  from  the  obligor.  Absolute 
rights,  therefore,  make  up  the  entire  sum  of  human  rights. 

Every  violation  of  a  right  is  either  a  tort  or  a  breach  of  obli- 
gation. Every  violation  of  an  absolute  right  is,  therefore,  a  tort. 
So  is  every  violation  of  a  right  arising  from  an  obligation  {i.e.,  of 
a  relative  right)  which  does  not  consist  of  a  breach  of  the  obli- 
gation. Hence  every  act  committed  by  any  person  in  violation 
of  a  right  created  by  a  real  obligation  is  a  tort  ;  for  such  an  act 
cannot  be  a  breach  of  the  obligation. 

Whether  a  right  created  by  a  personal  obligation  can  be 
violated  by  an  act  which  constitutes  a  tort,  i.e.,  by  an  act  which 
does  not  consist  of  a  breach  of  the  obligation,  is  a  question  in- 
volved in  much  doubt  and  difficulty.  In  Lumley  v.  Gye,^  and  in 
Bowen  v.  Hall,^  this  question  was  decided  broadly  in  the  affirma- 
tive ;  for  it  was  held  in  each  of  those  cases  that  it  was  a  tort 
maliciously  to  procure  an  obligor  to  break  his  obligation.  In 
each  of  them,  however,  the  Court  was  divided  ;  in  Lumley  v.  Gye 
there  was  a  very  powerful  dissenting  opinion,  which  was  fully 
adopted  by  one  of  the  judges  in  Bowen  v.  Hall  ;  and,  though  the 
writer  is  not  at  present  prepared  to  say  that  the  decisions  were 
wrong,  yet  neither  is  he  prepared  to  admit  that  they  were  right.^ 

An  obligation  may,  however,  be  so  framed  as  to  make  it 
possible  for  the  obligor  or  a  third  person  to  destroy  the  obligation 
before  the  time  for  its  performance  arrives.  For  example,  if 
the  performance  of  an  obligation  be  made  conditional  upon  the 
happening  of  an  event  which  is  subject  to  human  control,  any 
act  which  prevents  the  happening  of  that  event  will  destroy  the 
obligation  ;  and  there  can  be  no  doubt  that  such  an  act,  if  done 
for   the  purpose  of   destroying  the  obligation,   will  constitute  a 

1  2  El.  &  Bl.  216.  2  6Q.  B.  D.  333. 

^  "  N.  B.  Any  prevention  of  the  completion  of  an  obligation  {stricio  sensu)  caused  by 
a  third  party  would  be  no  violation  of  a  right  in  the  obligee,  or,  if  it  would,  would  be  a 
violation  of  a  distinct  right.  A  stranger  who  employs  a  builder  to  undertake  an  ex. 
tensive  work,  or  wounds  or  maims  him  (thereby,  in  either  case,  preventing  him  from 
completing  a  previous  contract  with  myself)  violates  no  right  in  me;  and  my  remedy 
is  against  the  builder  for  the  breach  of  contract  with  myself.  A  stranger  who  inveigles 
my  servant  violates,  not  my  jus  ad  rem  under  the  contract,  but  my  jus  in  re.  The 
servant  himself,  indeed,  does;  and  for  this  breach  of  his  obligation  {stricto  sensu)  I 
may  sue  him  on  the  contract."  —  Ausiin,  Jurisprudence  (4th  ed.),  Vol.  i,  p.  402,  note 


4  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

tort.  Nor  does  the  writer  see  any  reason  to  doubt  that  it  would 
also  be  a  tort  maliciously  to  procure  another  person  to  destroy  an 
obligation,  even  though  the  person  committing  the  act  of  destruc- 
tion were  the  obligor.^ 

For  most  practical  purposes,  however,  it  may  be  said  with 
sufficient  correctness  that  a  right  created  by  a  personal  obligation 
is  subject  to  violation  only  by  a  breach  of  the  obligation,  and 
hence  only  by  the  obligor ;  for  it  will  very  seldom  happen  that 
any  question  will  arise  as  to  the  violation  of  such  a  right  by  any 
person  other  than  the  obligor,  or  in  any  way  other  than  by  a 
breach  of  the  obligation. 

What  has  thus  far  been  said  of  rights  and  their  violation  has  in 
it  no  element  of  equity.  The  rights  which  have  been  described 
may  be  defined  as  original  and  independent  rights,  and  equity  has 
no  voice  either  in  the  creation  of  such  rights  or  in  deciding 
in  whom  they  are  vested.  Equity  cannot,  therefore,  create  personal 
rights  which  are  unknown  to  the  law ;  nor  can  it  say  that  a  res, 
which  by  law  has  no  owner,  is  a  subject  of  ownership,  nor  that  a 
res  belongs  to  A  which  by  law  belongs  to  B ;  nor  can  it  impose 
upon  a  person  or  a  thing  an  obligation  which  by  law  does  not 
exist ;  nor  can  it  declare  that  a  right  arising  from  an  obligation  is 
assignable,  if  by  law  it  is  not  assignable.  To  say  that  equity  can 
do  any  of  these  things  would  be  to  say  that  equity  is  a  separate 
and  independent  system  of  law,  or  that  it  is  superior  to  law. 

If  there  is  no  element  of  equity  in  a  right,  neither  is  there  in  the 
violation  of  that  right ;  for  what  is  a  violation  of  a  right  depends 
entirely  upon  the  extent  of  the  right.  If,  therefore,  equity  could 
declare  that  a  right  has  been  violated  when  by  law  it  has  not,  it 
could  thus  enlarge  the  right  of  one  man  and  curtail  that  of 
another. 

When,  however,  it  is  said  that  equity  has  no  voice  in  a  given 
question,  it  must  not  be  inferred  that  a  judge  sitting  in  equity  has 
no  such  voice.  An  equity  judge  administers  the  same  system  of 
law  that  a  common-law  judge  does  ;  and  he  is  therefore  constantly 
called  upon  to  decide  legal  questions.  It,  therefore,  sometimes 
happens  that  courts  of  equity  and  courts  of  common  law  declare 
the  law  differently  ;  and  a  consequence  of  this  may  be  that  courts 
of  equity  will  recognize  a  certain  right  which  courts  of  common 

1  See  the  observations  of  Professor  Ames,  i  IIarv.  L.  Rev.  io. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  5 

law  refuse  to  recognize ;  but  it  does  not  follow  that  the  right  thus 
recognized  is  properly  an  equitable  right.  So  courts  of  equity 
may  treat  an  act  as  a  violation  of  a  legal  right,  which  courts  of 
common  law  treat  as  rightful  ;  but  it  does  not  follow  that  such  an 
act  is  properly  an  equitable  tort.  A  well-known  instance  of  such 
an  act  is  found  in  what  is  commonly  called  equitable  waste.  For 
example,  if  a  tenant  for  life,  without  impeachment  of  waste,  cut 
down  ornamental  trees,  or  pull  down  houses,  a  court  of  equity 
says  he  has  committed  waste,  while  a  court  of  common  law  says 
he  has  not.  Either  court  may  be  wrong,  and  one  of  them  vuist 
be ;  for  the  question  depends  entirely  upon  the  legal  effect  to  be 
given  to  the  words  "without  impeachment  of  waste,"  and  that  can- 
not depend  upon  the  kind  of  court  in  which  the  question  happens 
to  arise.  Yet  the  practical  consequence  of  this  diversity  of  view 
is,  that  there  is  a  remedy  in  equity  against  the  tenant  in  the  case 
supposed,  while  there  is  none  at  law  ;  and  this  gives  to  the  act  of 
the  tenant  the  semblance  of  being  an  equitable  tort.  In  truth, 
however,  the  act  is  a  legal  tort,  if  the  view  taken  by  courts  of  equity 
is  correct,  while  it  is  a  rightful  act,  if  the  view  taken  by  courts  of 
common  law  is  correct. 

There  are,  however,  true  equitable  rights,  and  also  true  equita- 
ble wrongs,  the  latter  being  violations  of  equitable  rights.  A  true 
equitable  right  is  always  derivative  and  dependent,  i.e.,  it  is  derived 
from,  and  dependent  upon,  a  legal  right.  A  true  equitable  right 
exists  when  a  legal  right  is  held  by  its  owner  for  the  benefit  of  an- 
other person,  either  wholly  or  in  part.  Such  a  right  may  be  de- 
fined as  an  equita.ble_ personal  obligation.  It  is  an  obligation^ 
because  it  is  not  ownership;^  and  because  it  is  relative,  i.e.,  it 
cannot  exist  without  a  correlative  duty ;  and  it  is  personal  because 
the  duty  is  imposed  upon  the  person  of  the  owner  of  the  res  {i.e., 
of  the  legal  right),  and  not  upon  the  res  itself.  And  yet  courts  of 
equity  frequently  act  as  if  such  rights  were  real  obligations,  and 
even  as  if  they  were  ownership.  Indeed,  it  may  be  said  that  they 
always  so  act  when  they  can  thereby  render  the  equitable  right 
more  secure  and  valuable,  and  yet  act  consistently  with  the  fact 

1  That  is,  it  is  not  ownership  of  the  thing  which  is  the  subject  of  the  obligation.  For 
example,  when  land  is  held  by  one  person  for  the  benefit  of  another,  the  latter  is  not 
properly  owner  of  the  land  even  in  equity.  Of  course  the  equitable  obligation  itself 
is  as  much  the  subject  of  ownership  as  is  a  legal  obligation ;  and  the  only  reason  why 
such  ownership  is  not  recognized  by  courts  of  common  law  is  that  the  thing  itself  which 
is  the  subject  of  the  ownership  (i.e.,  the  equitable  obligation),  is  not  recognized  by  them. 


6  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

that  such  right  is  in  truth  only  a  personal  obligation.  For  ex- 
ample, a  personal  obligation  can  be  enforced  only  against  the 
obligor  and  his  representatives  ;  but  an  equitable  obligation  will 
follow  the  res  which  is  the  subject  of  the  obligation,  and  be  en- 
forced against  any  person  into  whose  hands  the  res  may  come, 
until  it  reaches  a  purchaser  for  value  and  without  notice.  In 
other  words,  equity  imposes  the  obligation,  not  only  upon  the 
person  who  owned  the  res  when  the  obligation  arose,  but  upon  all 
persons  into  whose  hands  it  afterward  comes,  subject  to  the  quali- 
fication just  stated.  But  the  moment  it  reaches  a  purchaser  for 
value  and  without  notice,  equity  stops  short ;  for  otherwise  it  would 
convert  the  personal  obligation  into  a  real  obligation,  or  into  own- 
ership. Why  is  it,  then,  that  equity  admits  as  an  absolute  limitation 
upon  its  jurisdiction  a  principle  or  rule  which  it  yet  seems  always 
to  be  struggling  against,  namely,  that  equity  acts  only  against  the 
person, —  csqidtas  agit  in  personam  f  One  reason  is  (as  has  already 
appeared)  that  equity  has  no  choice  or  option  as  to  admitting 
this  limitation  upon  its  jurisdiction.  Another  reason  is  that  if 
equitable  rights  were  rights  in  rem,  they  would  follow  the  res  into 
the  hands  of  a  purchaser  for  value  and  without  notice  ;  a  result 
which  would  not  only  be  intolerable  to  those  for  whose  benefit 
equity  exists,  but  would  be  especially  abhorrent  to  equity  itself. 
Upon  the  whole,  it  may  be  said  that  equity  could  not  create  rights 
in  rem  ^  if  it  would,  and  that  it  would  not  if  it  could. 

The  Roman  pigmis  and  hypotheca  were  rights  in  rem.  The 
pignus  was  admitted  into  our  law  because  it  affected  chattels 
only,  and  because  it  could  not  be  effected  without  delivery  of 
possession;   but  the  hypotheca  was  rejected  because  it  affected 

1  Here  again,  when  it  is  said  that  equity  cannot  create  rights  in  rem,  reference  is  had 
to  the  reu  which  is  the  subject  of  the  equitable  obhgation.  Regarding  the  equitable 
obligation  itself  as  the  res,  there  can  be  no  doubt  that  an  equitable  obligation,  like  a 
legal  obligation,  always  creates  a  right  in  rem  {i.e.,  an  absolute  right),  as  between  the 
obligee  and  all  the  rest  of  the  world  except  the  obligor;  for  it  can  create  a  right  in  per- 
sonam {i.e.,  a  relative  right)  only  as  between  the  obligee  and  the  obligor.  To  say,  there- 
fore, that  an  obligation  can  create  a  relative  right  only,  is  to  say  that  it  can  create  no  right 
whatever,  except  as  between  the  obligee  and  the  obligor.  Moreover,  if  an  obligation 
does  not  create  an  absolute  right,  it  is  impossible  to  support  Lumley  v.  Gye  and  Bowen 
V.  Hall,  though  the  converse  does  not  necessarily  follow. 

As  an  equitable  obligation  creates  a  right  which  (in  one  of  its  aspects)  is  absolute, 
of  course  it  follows  that  such  a  right  may  be  the  subject  of  a  purchase  and  sale,  or  of 
a  new  equitable  obligation.  If,  then,  the  owner  of  such  a  right  first  incur  an  obligation 
to  hold  it  for  the  benefit  of  A,  and  afterward  sell  it  to  B,  who  has  no  notice  of  the  pre- 
vious  obligation  to  A,  will  B  be  bound  by  the  obligation  to  A?     Prof.  Ames  has  clearly 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  J 

land,  and  did  not  require  any  change  of  possession.^  Equity 
introduced  the  hypotluca  without  any  violation  of  law,  and  with 
the  most  beneficial  effects.  Why  }  Because  equity  introduced 
it  as  a  right  in  personam  only. 

Legal  personal  obligations  may  be  created  without  limitation, 
either  in  respect  to  the  persons  between  whom,  or  the  purposes 
for  which,  they  are  created,  provided  the  latter  be  not  illegal. 
But  it  is  otherwise  with  equitable  obligations  ;  for,  as  they  must 
be  founded  originally  upon  legal  rights,  so  they  can  be  imposed 
originally  only  upon  persons  in  whom  legal  rights  are  vested,  and 
only  in  respect  of  such  legal  rights  ;  i.e.,  only  for  the  purpose  of 
imposing  upon  the  obligors  in  fav'or  of  the  obligees  some  duty 
in  respect  to  such  legal  rights.  But  the  original  creation  of 
equitable  obligations  is  subject  to  still  further  limitations,  for  it  is 
not  all  legal  rights  that  can  be  the  subjects  of  equitable  obliga- 
tions. Only  those  can  be  so  which  are  alienable  in  their  nature. 
Of  absolute  rights,  therefore,  none  of  those  which  are  personal 
can  ever  be  the  subjects  of  equitable  obligations,  while  nearly  all 
rights  which  consist  in  ownership  can  be  the  subjects  of  such 
obligations.  Relative  rights  can  generally  be  the  subjects  of 
equitable  obligations,  but  not  always.  For  example,  some  rights 
arising  from  real  obligations,  are  inseparably  annexed  to  the 
ownership  of  certain  land,  and,  therefore,  are  not  alienable  by 
themselves.  So,  also,  some  rights  arising  from  personal  obliga- 
tions are  so  purely  personal  to  the  obligee  as  to  be  obviously 
inalienable.  It  is  only  necessary  to  mention,  as  an  extreme  case, 
the  right  arising  from  a  promise  to  marry. 

What  has  thus  far  been  said  applies  to  equitable  rights  as 
originally  created,  i.e.,  to  equitable  rights  which  are  derived  im- 
mediately from  legal  rights  ;  but  there  are  equitable  rights  which 
are    derived    from    legal    rights    only   mediately.     For,    when    an 

shown,  as  the  writer  thinks,  that  he  will  not.  i  Harv.  L.  Rev.  9-1  i.  To  hold  other- 
wise would  be  to  hold  that  equity  will  not  afford  the  same  protection  to  property  of 
its  own  creation  that  it  does  to  property  not  of  its  own  creation;  which  would  be  not 
only  absurd  in  itself,  but  contrary  to  the  principle  that  equitable  property  is  governed 
by  the  §ame  rules  as  legal  property. 

If  Prof.  Ames's  doctrine  is  correct,  it  proves  the  statement  in  the  text,  namely,  that 
equity  will  not  create  a  true,  real  obligation  {i.e.,  one  which  will  follow  the  res  into  the 
hands  of  a  purchaser  for  value  and  without  notice),  even  when  it  has  the  power  to  do 
so;  for  of  course,  as  between  conflicting  rights  of  its  own  creation,  equity  may  do  what- 
ever justice  is  supposed  to  require. 

1  See  supra,  page  2,  note  3. 


8  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

equitable  right  has  once  been  created  it  may  in  its  turn  become 
the  subject  of  a  new  equitable  right,  i.e.,  its  owner  may  incur  an 
equitable  obligation  to  hold  his  equitable  right  for  the  benefit  of 
some  other  person  ;  and  this  process  may  go  on  ad  infinitum, 
each  new  equitable  right  becoming  in  its  turn  the  subject  of  still 
another  equitable  right,  and  all  the  equitable  rights  being  derived 
from  the  same  legal  right,  the  first  immediately,  the  others 
mediately.  It  is  to  be  observed  that  these  equitable  rights  are 
created  without  any  alienation  or  diminution  of  the  rights  from 
which  they  are  derived.  For  it  is  not  the  nature  of  an  obligation, 
real  or  personal,  legal  or  equitable,  while  it  remains  an  obligation 
merely  (that  is,  while  it  remains  unperformed)  to  alienate  or  di- 
minish in  any  way  any  right  vested  in  the  obligor.  In  the  case, 
therefore,  of  a  succession  of  equitable  rights  derived  from  one 
legal  right,  the  legal  right  remains  undiminished  in  its  original 
owner,  and  so  does  each  equitable  right,  and  yet  the  equitable 
rights  add  nothing  to  the  sum  of  human  rights,^  the  aggregate  of 
the  legal  right  and  all  the  equitable  rights  only  equalling  the  legal 
right.  So  if  the  legal  right  be  destroyed  {e.g.,  by  the  act  of  God), 
all  the  equitable  rights  will  fall  to  the  ground.  It  is  to  be  further 
observed  that  the  legal  owner  is  bound  only  to  the  original  equi- 
table owner,  and  the  latter  to  the  second  equitable  owner,  and  so 
on.  If  the  legal  owner  and  the  equitable  owners  be  conceived  of 
as  standing  in  a  line,  one  behind  the  other,  in  the  reverse  order  of 
the  time  of  the  creation  of  their  rights,  it  will  be  seen  that  each 
one  in  the  line  is  equitably  bound  to  the  one  immediately  before 
him,  and  to  no  one  else,  and  hence  that  there  are  as  many  equita- 
ble bonds  as  there  are  persons  in  the  line,  less  one,  —  the  one 
standing  in  front  being,  of  course,  subject  to  no  bond. 

The  foregoing  method  of  deriving  an  indefinite  succession  of 
equitable  rights  from  one  legal  right  may  be  termed  the  method 
by  sub-obligation. 

Another  method  is  for  the  first  equitable  obligee  to  assign  his 
equitable  right,  at  the  same  time  receiving  from  the  assignee  a  new 
equitable  obligation.  He  may  then  assign  his  new  equitable  right 
to  a  new  assignee,  at  the  same  time  receiving  from  the  latter  still 
another  equitable  obligation  ;  and  this  operation  may  be  repeated 
indefinitely.     This  method  takes  place  in  the  common  case  where 


1  See  supra,  page  3. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  9 

land  is  mortgaged  in  the  ordinary  way  to  several  persons  in  suc- 
cession ;  for  in  that  case  each  successive  mortgage  has  a  twofold 
operation,  namely,  that  of  an  assignment  or  transfer  to  the  mort- 
gagee, and  that  of  imposing  an  equitable  obligation  on  the  mort- 
gagee in  favor  of  the  mortgagor.  For  example,  the  first  mortgage 
has  the  twofold  operation  of  assignmg  or  transferring  the  land  to 
the  mortgagee,  and  of  creating  an  equitable  obligation  in  the  latter 
to  reconvey  the  land  to  the  mortgagor  on  payment  of  the  mort- 
gage debt ;  and  in  this  way  the  first  or  original  equitable  right  is 
created.  Then  a  second  mortgage  has  the  twofold  operation  of 
assigning  this  original  equitable  right,  and  of  creating  in  the  as- 
signee an  equitable  obligation  to  reassign  it  to  the  mortgagor  on 
payment  of  the  second  mortgage  debt.  In  this  way  a  second 
equitable  right  is  created,  which  in  its  turn  may  be  assigned  by  a 
third  mortgage,  the  third  mortgagee  incurring  an  equitable  obliga- 
tion to  reassign  it  to  the  mortgagor  on  payment  of  the  third  mort- 
gage debt ;  and  this  operation  will  be  repeated  as  often  as  a  new 
mortgage  is  given. 

•  If,  upon  the  making  of  the  first  mortgage,  the  mortgagor  and 
the  first  mortgagee  be  conceived  of  as  standing  one  behind  the 
other,  the  effect  of  a  second  mortgage  will  be  to  place  the  second 
mortgagee  between  the  mortgagor  and  the  first  mortgagee,  and 
thus  to  separate  the  two  latter  ;  for  the  second  mortgagee,  as  assignee 
of  the  mortgagor,  steps  into  the  shoes  of  the  latter  as  to  the  first 
mortgagee,  becoming  in  effect  the  mortSgor  as  to  the  latter,  just 
as  if  he  had  purchased  the  equitable  nght  of  the  mortgagor  {i.e., 
his  equity  of  redemption),  absolutely.  As  the  mortgagor  thus 
ceases  to  have  any  relations,  for  the  time  being,  with  the  first  mort- 
gagee, of  course  he  must  give  up  his  place  to  his  successor,  the 
second  mortgagee.  Still  the  mortgagor  does  not  stand  aside  as  a 
mere  stranger,  as  he  would  do  if  he  had  simply  sold  his  equity  of 
redemption  ;  but  he  takes  his  place  next  to  the  second  mortgagee 
by  virtue  of  the  new  equitable  obligation  {i.e.,  equity  of  redemp- 
tion) running  from  the  latter  to  him.  For  the  same  reasons  a 
third  mortgagee  will  take  his  place  between  the  mortgagor  and  the 
second  mortgagee,  and  so  on.  Therefore,  the  mortgagor  will  al- 
ways be  at  one  end  of  the  line,  and  the  first  mortgagee  at  the 
other  end,  the  latter  always  remaining  stationary,  but  the  former 
moving,  as  often  as  a  new  mortgage  is  given,  to  make  room  for 
the  new  mortgagee.       C.^'-^'' 


10  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

A  question,  however,  still  remains,  namely,  is  the  first  mortga- 
gee to  be  placed  in  front,  with  the  several  other  mortgagees,  and  the 
mortgagor  behind  him  in  the  order  of  time,  or  is  the  mortgagor  to  be 
placed  in  front  with  the  several  mortgagees  behind  him  in  the  reverse 
order  of  time  ?  The  answer  depends  upon  whether  the  mortgagees 
and  the  mortgagor  are  to  be  placed  with  reference  to  the  oper- 
ations of  the  mortgages  as  transfers  or  assignments,  or  with  refer- 
ence to  their  operation  as  creating  equitable  obligations.  If  the 
former,  the  first  mortgagee  should  stand  in  front ;  if  the  latter,  the 
mortgagor  should  stand  in  front.  And,  as  we  are  now  considering 
mortgages,  with  reference  to  their  operation  in  creating  equitable 
obhgations,  it  is  clear  that  the  mortgagor  and  the  mortgagees  should 
be  placed  with  reference  to  that  operation.  Thus,  we  have  the 
same  final  result,  whether  a  succession  of  equitable  obligations  be 
created  by  successive  mortgages,  or  by  successive  sub-obligations, 
though  this  result  is  produced  by  different  machinery.  In  both 
cases  there  are  as  many  equitable  obligations  as  there  are  persons 
in  the  line,  less  one.  In  both  cases  every  person  in  the  line,  ex- 
cept the  first  and  the  last,  is  both  an  equitable  obligor  and  an 
equitable  obligee,  the  first  being  an  equitable  obligee  only,  and  the 
last  an  equitable  obligor  only.  The  only  differences  are,  first,  that, 
in  the  case  of  successive  mortgages,  each  successive  equitable  obli- 
gation is  made  the  subject  of  a  new  equitable  obligation  (i.e.,  of  a 
sub-obligation),  not  by  the  original  obligee,  but  by  his  assignee  ; 
and,  secondly,  that  all  the  successive  equitable  obligations  are  made 
in  favor  of  the  same  person,  namely,  the  mortgagor,  the  latter 
always  acquiring  a  new  equitable  obligation  the  moment  that  he 
relinquishes  an  old  one. 

There  are  still  other  modes  in  which  an  indefinite  number  of 
equitable  rights  may  be  derived  from  one  legal  right,  namely  : 
first,  the  owner  of  the  legal  right,  instead  of  incurring  one  equi- 
table obligation  as  to  the  whole  of  the  legal  right,  may  incur  an 
indefinite  number  of  equitable  obligations,  each  as  to  some  aliquot 
part  of  the  legal  right ;  secondly,  the  owner  of  the  original  equi- 
table right  may  assign  that  right  to  an  indefinite  number  of  persons 
by  assigning  some  aliquot  part  of  it  to  each. 

With  respect  to  the  modes  in  which  they  are  created,  equitable 
obligations  differ  widely  from  legal  obligations.  Most  legal  obli- 
gations are  created  by  means  of  contracts  ;  i.e.,  a  person  promises 
(expressly  or  by  implication),  or  covenants   to  do  or  not  to   do 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  II 

something,  and  the  law  annexes  to  the  promise  or  covenant  an 
obligation  to  do,  or  refrain  from  doing,  according  to  the  terms  of 
the  promise  or  covenant.  But  a  purely  equitable  obligation  can- 
not be  made  in  that  way.  I  say  "a  purely  equitable  obligation," 
because  an  obligation  is  frequently  annexed  to  a  promise  or  cove- 
nant both  by  law  and  by  equity,  /.  e.,  the  law  annexes  a  legal  obli- 
gation, and  equity  annexes  an  equitable  obligation.  But  equity 
cannot  annex  an  obligation  to  a  promise  or  covenant  to  which  the 
law  refuses  to  annex  any  obligation.^  In  a  word,  there  is  properly 
no  such  thing  as  an  equitable  promise  or  covenant,  and  no 
such  thing  as  an  equitable  contract.  The  reason,  therefore, 
why  a  contract  cannot  result  in  creating  a  purely  equitable  obli- 
gation is,  that  a  contract  always  results  in  creating  a  legal 
obligation. 

How,  then,  are  purely  equitable  obligations  created  }  For  the 
most  part,  either  by  the  acts  of  third  persons  or  by  equity  alone. 
But  how  can  one  person  impose  an  obligation  upon  another.  By 
giving  property  to  the  latter  on  the  terms  of  his  assuming  an 
obligation  in  respect  to  it.  At  law  there  are  only  two  means  by 
which  the  object  of  the  donor  could  be  at  all  accomplished,  con- 
sistently with  the  entire  ownership  of  the  property  passing  to 
the  donee,  namely  :  first,  by  imposing  a  real  obligation  upon  the 
property  ;  secondly,  by  subjecting  the  title  of  the  donee  to  a  con- 
dition subsequent.  The  first  of  these  the  law  does  not  permit ; 
the  second  is  entirely  inadequate.  Equity,  however,  can  secure 
most  of  the  objects  of  the  donor,  and  yet  avoid  the  mischiefs  of 
real  obligations,  by  imposing  upon  the  donee  (and  upon  all  per- 
sons to  whom  the  property  shall  afterwards  come  without  value 
or  with  notice)  a  personal  obligation  with  respect  to  the  property ; 
and  accordingly  this  is  what  equity  does.  It  is  in  this  way  that 
all  trusts  are  created,  and  all  equitable  charges  made  (/.  c,  equita- 
ble hypothecations  or  liens  created)  by  testators  in  their  wills. 
In  this  way,  also,  most  trusts  are  created  by  acts  inter  vivos,  except 
in  those  cases  in  which  the  trustee  incurs  a  legal  as  well  as  an 
equitable  obligation.  In  short,  as  property  is  the  subject  of  every 
equitable  obligation,  so  the  owner  of  property  is  the  only  person 
whose  act  or  acts  can  be  the  means  of  creating  an  obligation  in 
respect  to  that   property.     Moreover,  the  owner  of  property  can 

1  See  supra,  page  4. 


12  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

create  an  obligation  in  respect  to  it  in  only  two  ways  :  first,  by 
incurring  the  obligation  himself,  in  which  case  he  commonly  also 
incurs  a  legal  obligation  ;  secondly,  by  imposing  the  obligation 
upon  some  third  person  ;  and  this  he  does  in  the  way  just 
explained. 

But  suppose  a  person,  to  whom  property  is  given  on  the  terms  of 
his  incurring  an  equitable  obligation  in  respect  to  it,  is  unwilling 
to  incur  such  obligation,  shall  it  be  imposed  upon  him  against  his 
will  ?  Certainly  not,  if  he  employs  the  proper  means  for  prevent- 
ing it ;  but  the  only  sure  means  of  preventing  it  is  by  refusing 
to  accept  the  property,  /.  e.,  to  become  the  owner  of  it ;  for  no 
person  can  be  compelled  to  become  the  owner  of  property  even 
by  way  of  gift.  If  he  once  accept  the  property,  the  equitable 
obligation  necessarily  arises,  and  he  can  get  rid  of  the  latter  only 
by  procuring  some  one  else  to  accept  the  property  with  the  obliga- 
tion ;  and  even  this  he  cannot  do  without  the  sanction  of  a  court 
of  equity. 

An  owner  of  property  may,  however,  incur  an  equitable  obliga- 
tion in  respect  to  it,  founded  upon  his  own  act  and  intention,  and 
yet  make  no  contract,  nor  incur  any  legal  obligation.  For  ex- 
ample, if  an  owner  of  property  do  an  act  with  the  intention  of 
transferring  the  property,  but  which  fails  to  accomplish  its  object 
because  some  other  act  is  omitted  to  be  done  which  the  law  makes 
necessary,  equity  will  give  effect  to  the  intention  by  imposing  an 
equitable  obligation  to  do  the  further  act  which  is  necessary  to 
effect  the  transfer,  provided  a  valuable  consideration  was  paid 
for  the  act  already  done,  so  that  the  transfer,  when  made,  will  be 
a  transfer  for  value,  and  not  a  voluntary  transfer.  So,  if  an  owner 
of  property,  thinking  that  he  has  the  power  to  hypothecate  it 
merely  by  declaring  his  will  to  that  effect,  declare,  for  a  valuable 
consideration,  that  such  property  shall  be  a  security  to  a  creditor 
for  the  payment  of  his  debt,  though  he  will  not  create  a  legal  hy- 
pothecation, nor  incur  any  legal  obligation,  yet  he  will  create  an 
equitable  hypothecation  or  an  equitable  lien  ;  i.  e.,  equity  will  give 
effect  to  the  intention  by  creating  an  equitable  obligation  to  hold 
the  property  as  if  it  were  legally  bound  for  the  payment  of  the 
debt.  In  both  the  cases  just  put,  equity  proceeds  upon  the  prin- 
ciple that  the  act  already  done  would  be  effective  for  the  accom- 
plishment of  its  object  in  the  absence  of  any  positive  rule  of  law 
to  the  contrary ;  and  in  both  cases  equity  gives  effect  to  the  inten- 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  1 3 

tion  without  any  violation  of  law  ;  for,  in  the  first  case,  equity  com- 
pels a  performance  of  every  act  which  the  law  requires,  while,  in 
the  second  case,  equity  merely  creates  a  personal  obligation  which 
violates  no  law,  in  lieu  of  a  real  obligation,  which  the  law  refuses 
to  create. 

Many  equitable  obligations  are  created  and  imposed  by  equity 
alone  ;  and  this  is  done  upon  the  principle  that  justice  can  thereby 
be  best  promoted.  For  example,  it  is  by  force  of  equity  alone 
that  an  equitable  obligation  follows  the  property  which  is  the  sub- 
ject of  the  obligation  until  such  property  reaches  a  purchaser  for 
value  and  without  notice.  The  obligation  may  have  been  created 
originally  through  the  act  or  acts  of  the  owner  of  the  property;  but 
it  is  by  force  of  equity  alone  that  this  obligation  is  imposed  upon 
subsequent  owners  of  the  property  who  had  no  part  in  its  original 
creation.  So  also  all  that  large  class  of  equitable  obligations  com- 
monly known  as  constructive  trusts  are  created  by  equity  alone. 
For  example,  where  property  is  obtained  by  fraud,  unless  (as 
seldom  happens)  the  fraud  be  of  such  a  nature  as  to  prevent  the 
legal  title  from  passing,  the  only  legal  remedy  will  be  an  action  for 
damages  against  the  party  committing  the  fraud ;  but  equity,  by 
creating  an  equitable  obligation,  can  and  will  follow  the  property 
itself  (until  it  comes  into  the  hand^  of  a  purchaser  for  value  and 
without  notice),  and  compel  a  specific  restoration  of  it.  If  it  be 
asked  why  a  legal  obligation  to  restore  the  property  is  not  created, 
and  how  equity  can  go  beyond  the  law,  the  answer  is  that  the  right 
is  created  in  such  a  case  merely  for  the  sake  of  the  remedy,  and 
that  the  common  law  never  contemplates  any  remedies  other  than 
those  which  the  common  law  itself  affords.  The  common  law 
does  not,  therefore,  create  an  obligation  to  restore  the  property, 
because  it  would  regard  such  an  obligation  as  useless.  It  could 
only  give  damages  for  a  breach  of  the  obligation  ;  and  it  can 
equally  well  give  damages  for  the  fraud  itself.  Moreover,  the 
equitable  obligation  is  generally  conditional  upon  the  restoration 
by  the  person  defrauded  of  the  consideration  received  by  him, 
and  courts  of  common  law  have  no  adequate  machinery  for  deal- 
ins:  wdth  conditions  of  such  a  nature. 

Another  large  class  of  equitable  obligations  created  by  equity 
alone  are  those  (already  referred  to)  imposed  upon  mortgagees  in 
favor  of  mortgagors.  A  mortgage  is  a  transfer  of  property,  either 
defeasible  by  a  condition  subsequent,  namely,  by  the  payment  of 


14  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  mortgage  debt  on  a  day  named,  or  accompanied  by  an  agree- 
ment to  reconvey  the  property  upon  a  condition  precedent,  namely, 
the  payment  of  the  mortgage  debt  on  a  day  named.  In  either 
case,  if  the  mortgagor  suffer  the  day  to  pass  without  performing 
the  condition,  his  right  to  have  the  property  restored  to  him  is  en- 
tirely and  absolutely  gone  at  law  ;  and  it  is  at  the  very  moment  that 
the  mortgagor  loses  his  legal  right  that  his  equitable  right  arises, 
namely,  to  have  the  property  reconveyed  to  him  (notwithstanding 
his  failure  to  perform  the  condition  agreed  upon),  on  payment 
of  the  mortgage  debt,  interest,  and  costs.  But  how  is  it  that 
equity  can  create  such  an  obligation,  it  being  not  only  without 
any  warrant  in  law,  but  directly  against  the  express  agreement  of 
the  parties }  Because,  while  the  mortgagor  has  lost  his  right  to 
the  land,  the  mortgage  debt  remains  wholly  unpaid  ;  and  con- 
sequently the  mortgagee  can  at  law  keep  the  land,  and  yet  com- 
pel the  mortgagor  to  pay  the  mortgage  debt.  In  a  word,  the 
mortgagor  loses  {i.e.,  forfeits)  his  land  merely  by  way  of  penalty 
for  not  performing  the  condition  ;  and  though  this  is  by  the  ex- 
press agreement  of  the  parties,  yet  equity  says  the  only  legitimate 
object  of  the  penalty  was  to  secure  performance  of  the  condition  ; 
and,  therefore,  it  is  unconscionable  for  the  mortgagee  to  enforce 
the  penalty,  provided  he  can  be  fully  indemnified  for  the  breach  of 
the  condition  ;  and,  the  condition  being  merely  for  the  payment  of 
money,  the  mortgagee  will,  in  legal  contemplation,  be  fully  in- 
demnified for  its  breach  by  the  payment  of  the  mortgage  debt 
(though  after  the  day  agreed  upon)  with  interest  and  costs.  In 
short,  equity  creates  the  equitable  obligation  in  question  upon  the 
ancient  and  acknowledged  principle  of  relieving  against  penalties 
and  forfeitures. 

Still  another  important  class  of  equitable  obligations  created 
by  equity  alone  are  those  commonly  known  as  rights  of  subro- 
gation. For  example,  a  debtor  becomes  personally  bound  to  his 
creditor  for  the  payment  of  the  debt,  and  also  pledges  his  prop- 
erty to  the  creditor  for  the  same  purpose.  A  third  person  also 
becomes  personally  bound  to  the  creditor  for  the  payment  of  the 
same  debt  as  surety  for  the  debtor,  and  pledges  his  property  to 
the  creditor  for  the  same  purpose.  In  this  state  of  things  justice 
clearly  requires  that  the  debt  be  thrown  upon  the  debtor,  or  upon 
the  pledge  belonging  to  him,  and  that  the  surety  and  the  pledge 
belonging  to  him  be  exonerated  from  the  debt,  provided  this  can 


A    BRIEF  SURVEY  OF  EilU.TY  JURISDICTIOX.  I  5 

be  done  without  interfering  with  the  rights  of  the  creditor.  The 
latter,  however,  has  the  right  to  enforce  payment  of  his  debt  in 
whatever  way  he  thinks  easiest  and  best,  /.  c,  in  whatever  way  he 
chooses  ;  and  equity  cannot  prevent  the  exercise  of  that  right 
without  a  violation  of  law.  If,  then,  the  surety  or  his  property 
should  be  compelled  to  pay  the  debt,  the  legal  consequences 
would  be,  first,  that  the  debt  would  be  gone,  and  the  debtor's 
personal  obligation  to  the  creditor  extinguished,  for  payment  by 
the  surety  or  by  his  property  has  the  same  legal  effect  as  payment 
by  the  debtor  or  by  his  property  ;  secondly,  that,  the  Personal  obli- 
gation of  the  debtor  being  extinguished,  the  real  obligation  of  his 
property  would  be  extinguished  also,  for  the  latter  is  only  acces- 
sory to  the  former,  and  hence  it  cannot  exist  without  it.  More- 
over, other  legal  consequences  to  the  surety  would  be,  first,  that 
the  surety  would  lose  the  benefit  of  any  legal  priority  that  the 
creditor  might  have  had  over  other  creditors  of  the  same  debtor ; 
secondly,  that  the  surety  would  have  no  means  of  obtaining  in- 
demnity from  the  debtor  unless  he  could  prove  a  contract  by  the 
latter  (either  express  or  implied  in  fact)  to  indemnify  him.  But 
here  equity  employs  a  useful  fiction  in  aid  of  the  surety  ;  tor  it 
treats  the  latter  as  having  (not  paid,  but)  purchased  the  debt. 
Hence,  it  treats  the  debt  as  still  subsisting  in  equity  until  it  is  paid 
by  the  debtor  or  by  his  property.  In  other  words,  payment  by 
the  surety  or  by  his  property  does  not  extinguish  any  of  the 
rights  of  the  creditor  in  equity,  though  it  does  at  law  ;  and  yet, 
after  payment  by  the  surety  or  by  his  property,  the  creditor  holds 
his  rights,  not  for  his  own  benefit,  but  for  the  benefit  of  the 
surety.  This,  therefore,  is  an  instance  in  which  equity  creates 
one  equitable  right  (namely,  in  the  creditor),  in  order  to  make  it 
the  subject  of  another  equitable  right  (namely,  in  favor  of  the 
surety). 

There  are  other  cases  in  which  the  object  of  subrogation  is  to 
obtain  not  exoneration,  but  contribution,  namely,  where  there 
are  several  persons  who  ought  in  justice  to  contribute  equally 
towards  the  discharge  of  a  debt  or  other  burden.  Such  is  the 
case  when  there  are  several  co-sureties  for  an  insolvent  debtor, 
or  when  several  persons  incur  a  debt  jointly. 

There  is  a  class  of  cases  in  which  the  doctrine  of  subrogation 
seems  to  have  been  unwarrantably  extended  under  <-he  name  of 
marshalling.      For  example,    if  the  owner  of  houses   A  and    B 


1 6  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

(worth,   respectively,   $10,000  and   $5,000)  mortgage  them  both 
to  C  for  $5,000,  and  then  mortgage  A  to  D  for  $10,000,  and  then 
become  insolvent,  it  is  said  that   D  may  throw  the  whole  of   C's 
mortgage  on  B,  and  thus  obtain  payment  in  full  of  his  own  mort- 
gage out  of  A,  though  the  consequence  be  that   unsecured  credit- 
ors of  the  insolvent  will  receive  nothing ;  and  the  principle  upon 
which  this  is  held  is  generalized  by  saying  that  when  one  of  two 
creditors  has  the  security  of    two  funds,  and  the  other   has  the 
security  of  only  one  of  those  funds,  the  latter  creditor  may  throw 
the  debt  of  the  former  creditor  wholly  upon  the  fund  which   is 
not  common  to  both  (provided,  of  course,  that  fund  be   sufficient 
to  pay  it),  in  order  that  he  may  obtain  payment  of  his  own   debt 
out  of  the  fund  which  is  common  to  both.     This  doctrine  had  its 
origin  in   efforts  of  courts  of  equity  to    prevent   the    harsh    and 
unjust  discriminations    which    the    law    formerly    made   between 
creditors  of   persons   deceased,  whose  claims  were  in   equity  and 
justice  equal ;  and   it  seems   that  the  doctrine,  as  a  general  one, 
cannot  be  sustained   upon    any  principle.     For  example,  in  the 
case  just  supposed,  the  doctrine  of  marshalling  assumes  that,  in 
equity  and  justice,  house  B  ought  to  exonerate  house  A  from  the 
first  mortgage,  whereas,  in   truth,  they  ought  to   bear  the    bur- 
den of  the  first  mortgage  equally.     As  between  secured  and  unse- 
cured creditors,  equity  clearly  ought  to  favor  the  latter  class,  if 
either. 

Lastly,  still  another  instance  of  an  equitable  obligation  created 
by  equity  alone,  is  the  equitable  hypothecation  or  lien  given  to  a 
vendor,  upon  land  which  he  has  sold  and  conveyed,  to  secure  the 
payment  of  the  purchase-money. 
s  Reference  has  been  already  made  to  cases  in  which  a  contract 
results  in  an  equitable  as  well  as  a  legal  obligation.  Why  is  this } 
Because  the  legal  obligation  is  not  sufficient  for  all  the  purposes 
of  justice.  In  what  contracts,  then,  do  the  purposes  of  justice 
require  an  equitable  as  well  as  a  legal  obligation  }  Chiefly  in  those 
which  consist  in  giving  {dando)  instead  of  doing  {facicndo). 
What  are  the  defects  in  the  legal  obligation  annexed  to  such  con- 
tracts .?  Chiefly  these  :  First,  although  an  obligation  to  give  a 
thing  is  said  to  confer  on  the  obligee  a  right  to  the  thing,  a_/>/j-  ad 
rem,  yet  this  right  can  be  enforced  only  against  the  obligor  per- 
sonally. A  consequence  of  this  is,  that,  if  the  obligor  become 
insolvent  after  receiving  the  price  of  the  thing,  but  before  the  thing 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  1/ 

is  actually  given  to  the  obligee,  both  the  thing  itself  and  its  price 
will  go  to  the  creditors  of  the  insolvent.  Of  course  justice  requires 
that,  the  obligor  having  obtained  the  price  of  the  thing,  the  obligee 
should  obtain  the  thing  itself ;  and  this  an  equitable  obligation 
enables  him  to  do.  Secondly,  a  legal  obligation  can  never  be 
enforced  against  any  person  other  than  the  obligor  or  his  personal 
representative.  If,  therefore,  the  owner  of  a  res  who  has  incurred 
a  legal  obligation  to  give  it  to  A,  choose  to  give  it  to  B,  or  if  he 
die,  and  the  res,  being  land,  descends  to  his  heir,  it  will  be  impos- 
sible for  A  to  obtain  any  relief  except  damages,  however 
inadequate  such  relief  may  be.  But  if  an  equitable  obligation  has 
also  been  incurred,  it  will  be  possible  for  A  to  obtain  the  res  itself, 
notwithstanding  the  death  of  the  obligor,  and  also  notwithstanding 
the  transfer  of  the  I'cs  to  B,  unless  the  latter  be  a  purchaser  for 
value  and  without  notice.  Thirdly,  a  legal  obligation  creates  a 
right  (i.e.,  a  relative  right)  in  the  obligee  alone,  and  this  right 
must  remain  in  the  obligee  until  his  death,  unless  it  be  previously 
assigned  either  by  his  own  act  or  by  act  of  law  ;  and  upon  the 
death  of  the  obligee,  the  right  must  vest  in  his  personal  represent- 
ative. When,  therefore,  a  contract  is  made  with  A  to  give  a  thing 
to  B,  it  seems  impossible  to  enforce  the  contract  effectively  by 
virtue  of  the  legal  obligation  annexed  to  it  ;  for  it  can  be  enforced 
by  A  alone,  and  he  can  recover  no  more  than  nominal  damages. 
Equity  will,  however,  annex  to  such  a  contract  an  obligation 
directly  to  B  ;  and  hence  the  latter  can  obtain  in  equity  without 
difficulty,  the  benefit  intended  to  be  secured  to  him  by  the  con- 
tract. So,  if  a  legal  obligation  be  incurred  to  convey  land  to  the 
obligee,  and  the  latter  die  before  the  land  is  conveyed,  the  sole 
right  to  enforce  the  obligation  will  go  to  the  personal  representa- 
tive of  the  obligee ;  and  yet,  clearly  the  heir  ought  to  have  the 
land,  though  the  personal  representative  ought  to  pay  for  it  ;  for 
such  would  have  been  the  effect  of  the  performance  of  the  obliga- 
tion but  for  the  accident  of  the  death  of  the  obligee.  To  meet 
this  difficulty,  therefore,  equity  will  create  an  equitable  right  in  the 
obligee,  which,  upon  the  death  of  the  latter,  will  go  to  his  heir. 

Having  thus  treated  with  sufficient  fulness  of  equitable  rights,  it 
remains  to  speak  briefly  of  the  violation  of  such  rights.  In 
respect  to  their  violation,  equitable  obligations  are  subject  to 
nearly  the  same  observations  as  legal  obligations.  Equitable 
obligations  are,  however,   more  subject    to  violation  by   tortious 


1 8  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

acts  than  are  legal  obligations ;  for,  as  an  equitable  obligation 
always  has  some  legal  or  equitable  right  for  its  subject,  any  tor- 
tious injury  to,  or  destruction  of,  this  latter  right,  or  any  wrongful 
transfer  of  it,  will,  it  seems,  be  a  tort  to  the  equitable  obligee. 
Thus,  a  trespass  committed  upon  land  or  upon  a  chattel  which  is 
the  subject  of  an  equitable  obligation,  is,  it  seems,  a  tort  to  the 
equitable  obligee,  though,  as  it  is  also  a  tort  to  the  legal 
owner,  and  as  the  equitable  obligee  can,  as  a  rule,  obtain 
redress  only  through  the  legal  owner,  the  tort  to  the  equitable 
obligee  seldom  attracts  attention.  So  it  seems  that  any  wrongful 
extinguishment  by  the  obligee  of  an  obligation  which  is  itself  the 
subject  of  an  equitable  obligation,  though  it  is  a  breach  of  the 
equitable  obligation,  is  also  a  tort  to  the  equitable  obligee.  So  it 
seems  that  the  alienation  by  its  owner  of  any  right  which  is  the 
subject  of  an  equitable  obligation,  in  disregard  of  such  obligation, 
is  a  tort  to  the  equitable  obligee. 

This  completes  what  it  was  proposed  to  say  upon  the  subject  of 
rights  and  their  violation,  and  the  way  is  thus  prepared  to  treat  of 
remedies. 


ARTICLE    IV 


II. 
Classification  of  Wrongs. 

IT  is  because  rights  exist  and  because  they  are  sometimes 
violated  that  remedies  are  necessary.  The  object  of  all 
remedies  is  the  protection  of  rights.  Rights  are  protected  by 
means  of  actions  or  suits.  The  term  "  remedy"  is  applied  either 
to  the  action  or  suit  by  means  of  which  a  right  is  protected,  or  to 
the  protection  which  the  action  or  suit  affords.  An  action  may 
protect  a  right  in  three  ways,  namely,  by  preventing  the  violation 
of  it,  by  compelling  a  specific  reparation  of  it  when  it  has  been 
violated,  and  by  compelling  a  compensation  in  money  for  a  viola- 
tion of  it.  The  term  "  remedy  "  is  strictly  applicable  only  to  the 
second  and  third  of  these  modes  of  protecting  rights  ;  for  remedy 
literally  means  a  cure, — not  a  prevention.  As  commonly  use4  in 
law,  however,  it  means  prevention  as  well  as  cure ;  and  it  will  be 
so  used  in  this  paper.  In  equity  the  term  "relief"  is  commonly 
used  instead  of  "  remedy  ; "  and,  though  relief  is  a  much  more 
technical  term  than  remedy,  it  has  the  advantage  of  being  equally 
applicable  to  all  the  different  modes  of  protecting  rights. 

Though  remedies,  like  rights,  are  either  legal  or  equitable,  yet 
the  division  of  remedies  into  legal  and  equitable  is  not  co-ordinate 
with  the  corresponding  division  of  rights  ;  for,  though  the  reme- 

1  I  Harv.  L.  Rev.  hi. 


20  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

dies  afforded  for  the  protection  of  equitable  rights  are  all  equitable, 
the  remedies  afforded  for  the  protection  of  legal  rights  may  be 
either  legal  or  equitable,  or  both. 

Actions  are  either  in  personam  ox  in  re^n.  Actions  in  personam 
are  founded  upon  torts,  actual  or  threatened,  or  upon  breaches  of 
personal  obligations,  actual  or  threatened.  They  are  called  in 
personam  because  they  give  relief  only  against  the  defendant  per- 
sonally, i.  e.,  the  plaintiff  has  no  claim  to  or  against  any  res. 
Actions  in  rem  are  founded  upon  breaches  of  real  obligations,  or 
upon  the  ownership  of  corporeal  things,  movable  or  immovable. 
Actions  founded  upon  breaches  of  real  obligations  are  called  ijt 
rem,  because  they  give  relief  only  against  a  res.  Actions  founded 
upon  the  ownership  of  corporeal  things  are  called  zw  rem,  because 
the  only  relief  given  in  such  actions  is  the  possession  of  the  things 
themselves.  Actions  /';/  rem,  as  well  as  actions  in persona7n,  are 
(except  in  admiralty)  in  form  against  a  person.  The  person, 
however,  against  whom  an  action  in  personam  is  brought,  is  fixed 
and  determined  by  law ;  namely,  the  person  who  incurred  (and 
consequently  the  person  who  broke  or  threatened  to  break)  the 
obligation,  or  the  person  who  committed  or  threatened  to  commit 
the  tort,  while  the  person  against  whom  an  action  in  rem  is 
brought  is  any  person  who  happens  to  be  in  possession  of  the  res, 
and  who  resists  the  plaintiff's  claim.  The  relief  given  in  actions 
i7i  personam  may  be  either  the  prevention  or  the  specific  repara- 
tion of  the  tort  or  of  the  breach  of  obligation,  or  a  compensation 
in  money  for  the  tort  or  for  the  breach  of  obligation.  The  relief 
given  in  an  action  in  rem,  founded  on  the  breach  of  a  real  obliga- 
tion, is  properly  the  sale  of  the  res,  and  the  discharge  of  the 
obligation  out  of  the  proceeds  of  the  sale.  The  relief  given  in 
an  action  in  rem,  founded  on  the  ownership  of  a  corporeal  res,  is 
the  recovery  of  the  possession  of  the  res  itself  by  the  plaintiff. 

Actions  in  re^n  founded  upon  ownership  are  anomalous.  As 
every  violation  of  a  right  is  either  a  tort  or  a  breach  of  obligation, 
it  would  naturally  be  supposed  that  every  action  would  be  founded 
upon  a  tort  or  breach  of  obligation,  actual  or  threatened  ;  and  if 
this  were  so,  the  only  actions  in  rem  would  be  those  founded  upon 
breaches  of  real  obligations.  But  when  a  right  consists  in  the 
ownership  of  a  corporeal  thing,  a  violation  of  that  right  may  con- 
sist in  depriving  the  owner  of  the  possession  (and  consequently  of 
the  use  and  enjoyment)   of  the  thing.     If  such   a  tort  had   the 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  2  1 

effect  of  destroying  the  owner's  right,  as  the  physical  destruction 
of  the  thing  would,  it  would  not  differ  from  other  torts  in  respect 
to  its  remedy;  for  the  tort-feasor  would  then  become  the  owner  of 
the  thing,  and  its  former  owner  would  recover  its  value  in  money 
as  a  compensation  for  the  tort.  And  by  our  law,  in  case  of  mov- 
able things,  the  tort  often  has  the  effect  practically  of  destroying 
the  owner's  right,  sometimes  at  his  own  election,  sometimes  at  the 
election  of  the  tort-feasor.  But,  subject  to  that  exception,  the 
tort  leaves  the  right  of  the  owner  untouched,  the  thing  still  belong- 
ing to  him.  He  can,  indeed,  bring  an  action  for  the  tort,  and 
recover  a  compensation  in  money  for  the  injury  that  he  has  suf- 
fered down  to  the  time  of  bringing  the  action  ;  ^  but  the  compensa- 
tion will  not  include  the  value  of  the  thing,  as  the  thing  has  not, 
in  legal  contemplation,  been  lost.  If,  therefore,  an  action  for  the 
tort  were  the  owner's  only  remedy,  he  must  be  permitted  to  bring 
successive  actions  ad  itifinitmn^  or  as  long  as  the  thing  continued 
to  exist ;  for  in  that  way  alone  could  he  obtain  full  compensation 
for  the  injury  which  he  would  eventually  suffer.  But,  as  the  law 
abhors  a  multiplicity  of  actions,  it  always  enables  the  owner  to 
obtain  complete  justice  by  a  single  action,  or  at  most  by  two 
actions.  Thus,  it  either  enables  him  to  recover  the  value  of  the 
thing  in  an  action  for  the  tort,  by  making  the  tort-feasor  a  pur- 
chaser of  the  thing  at  such  a  price  as  a  jury  shall  assess,  or  it 
enables  him  to  recover  the  possession  of  the  thing  itself  in  an 
action  in  rem.  He  is,  however,  further  entitled  to  recover  the 
value  of  the  use  and  enjoyment  of  the  thing  during  the  time  that 
the  defendant  has  deprived  him  of  its  possession,  together  with 
compensation  for  any  injury  which  the  thing  itself  may  have  suffered 
while  in  the  defendant's  possession  ;  and  this  he  recovers,  some- 
times in  the  same  action  in  which  he  recovers  the  thing  itself  or 
its  value,  and  sometimes  in  a  separate  action. 

1  The  reader  should  be  reminded,  however,  that  by  our  law  an  owner  of  immovable 
property  who  has  been  dispossessed  ^i.e.,  disseised)  of  it,  can  recover  damages  m  an  action 
of  tort  only  for  the  original  dispossession;  he  cannot  recover  damages  for  the  subse- 
quent detention  of  the  property  until  he  has  recovered  its  possession.  The  reason  is, 
that  a  loss  of  the  possession  or  seisin  of  immovable  property  is  technically  a  loss  of  the 
ownership,  and  the  acquisition  of  possession  or  seisin  is  an  acquisition  of  ownership, 
though  it  may  be  wrongful.  Hence,  a  disseisor  ceases  to  be  a  trespasser  the  moment  his 
disseisin  is  completed.  When,  however,  the  original  owner  recovers  back  his  lost  seisin, 
his  recovered  seisin  relates  back  to  the  time  of  the  disseisin,  the  law  treating  him  as 
having  been  in  possession  all  the  time.  Hence,  he  can  then  recover  damages  for  the  wrong- 
ful detention  of  the  property. 


22  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

It  seems,  therefore,  that  an  action  in  rem,  founded  upon  owner- 
ship, may  be  regarded  as  a  substitute  for  an  infinite  or  an  indefi- 
nite number  of  actions  founded  upon  the  tort  of  depriving  the 
plaintiff  of  the  possession  of  the  res,  which  is  the  subject  of  the 
action  ;  and  that  such  an  action  may,  therefore,  be  regarded  as  in  a 
large  sense  founded  upon  the  tort  just  referred  to,  and  the  re- 
covery of  the  thing  itself  as  a  specific  reparation  of  that  tort. 

Thus  far,  in  speaking  of  actions  and  remedies,  it  has  been  as- 
sumed that  the  law  of  any  given  country  is  a  unit ;  i.  e.,  that  there 
is  but  one  system  of  law  in  force  by  which  rights  are  created  and 
governed,  and  also  but  one  system  of  administering  justice. 
Whenever,  therefore,  any  given  country  has  several  systems, 
whether  of  substantive  or  remedial  law,  what  has  been  thus  far 
said  is  intended  to  apply  to  them  all  in  the  aggregate, — not  to 
each  separately.  Thus,  in  English-speaking  countries  there  are 
no  less  than  three  systems  of  substantive  law  in  force,  each  of 
which  has  a  remedial  system  of  its  own  ;  namely,  the  common  law, 
the  canon  law,  and  admiralty  law.  There  is  also  a  fourth  system 
of  remedial  law,  namely,  equity.  What  has  been  said,  therefore, 
of  actions  and  remedies  applies  to  all  of  these  systems  in  the 
aggregate. 

It  follows,  therefore,  that  in  English-speaking  countries  civil 
jurisdiction  is  parcelled  out  among  the  four  systems  just  referred 
to  ;  and  it  is  the  chief  object  of  this  paper  to  ascertain  what  por- 
tion of  this  jurisdiction  belongs  to  equity,  and  for  what  reasons. 

But  here  an  important  question  arises  as  to  the  nature  of  equity 
jurisdiction.  If  we  have  three  systems  of  substantive  law,  each 
exercising  jurisdiction  over  those  rights  which  are  of  its  own  crea- 
tion, and  if  equity  is  a  system  of  remedial  law  only,  how  does  it 
happen  that  equity  has  any  jurisdiction  t  Do  not  the  other  three 
systems  divide  among  themselves  the  entire  field  of  jurisdiction, 
and  how  then  is  there  any  room  for  equity  }  The  answer  is  that 
the  term  "jurisdiction,"  as  apphed  to  equity,  has  a  very  different 
meaning  from  what  it  has  as  applied  to  courts  of  law ;  and  the 
failure  to  recognize  that  fact  has  caused  much  confusion  of  ideas. 
As  applied  to  courts  of  law,  the  term  is  used  in  its  primary  and 
proper  sense  ;  as  applied  to  equity,  it  is  used  in  a  secondary  and 
improper  sense.  For  example,  when  two  courts  of  law,  created  by 
the  same  sovereign,  are  independent  of  each  other,  the  jurisdiction 
of  each  is  either  exclusive  of  the  other,  or  concurrent  with  it,  or  it 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  23 

is  partly  exclusive  and  partly  concurrent.  If  one  invades  a  prov- 
ince which  belongs  exclusively  to  the  other,  it  acts  without  right 
(if  not  without  power),  and  ought  to  be  restrained  by  the  common 
sovereign.  If  a  particular  province  belongs  to  them  both  {i.e., 
if  they  have  concurrent  jurisdiction  over  it),  each  is  entitled  to 
enter  it,  while  neither  is  entitled  to  interfere  with  the  other  ;  and 
hence  questions  of  priority  are  liable  to  arise  between  them,  i.  c, 
questions  as  to  which  of  them  first  obtained  jurisdiction  over  given 
controversies.  But  the  terms  "  concurrent  "  and  "  exclusive  "  have 
no  proper  application  to  equity,  or  rather  they  do  not  correctly 
describe  the  relations  between  equity  and  the  other  three  systems. 
On  the  one  hand,  equity  never  excludes  either  of  the  other  sys- 
tems. It  is  true  that  equity  alone  exercises  jurisdiction  over  equi- 
table rights  ;  but  that  is  not  because  equity  claims  any  monopoly 
of  such  jurisdiction, —  it  is  because  the  other  systems  decline  to 
exercise  it,  they  not  recognizing  equitable  rights.  On  the  other 
hand,  equity  is  never  excluded  by  either  of  the  other  systems; 
and  hence  equity  exercises  jurisdiction  over  legal  rights  (as  well 
as  over  equitable  rights)  without  any  external  restraint.  Since, 
however,  one  or  more  of  the  other  systems  has  jurisdiction  over 
every  legal  right,  the  jurisdiction  of  equity  over  legal  rights  is  in  a 
certain  sense  concurrent,  but  never  in  any  proper  sense  ;  and  not 
unfrequently  it  is  in  fact  exclusive  in  the  sense  of  being  the  only 
jurisdiction  that  is  actually  exercised.  It  is  not  properly  concurrent, 
because  there  is  no  competition  between  the  two  jurisdictions. 
Courts  of  law  act  just  as  they  would  act  if  equity  had  no  exist- 
ence, just  as  in  fact  they  did  act  before  equity  had  any  existence. 
Nor  does  equity  ever  complain  of  their  so  acting,  or  seek  to  put 
any  restraint  upon  their  action,  or  question  the  validity  and  legality 
of  their  acts;  and  yet  equity  acts  with  the  same  freedom  from  re- 
straint, even  wheri  dealing  with  legal  rights,  that  courts  of  law  do 
when  dealing  with  rights  of  their  own  creation. 

What  has  thus  far  been  said,  however,  is  calculated  rather  to 
stimulate  than  to  satisfy  inquiry.  How  is  it  that  equity  has  the 
power  to  invade  at  will  the  provinces  of  other  courts  1  What  ob- 
ject has  equity  in  assuming  jurisdiction  over  rights  which  it  is  the 
special  province  of  other  courts  to  protect }  What  is  the  extent 
of  that  jurisdiction .?  The  answer  to  the  first  of  these  questions 
will  be  found  in  the  fact  that  the  jurisdiction  of  equity  is  a  pre- 
rogative jurisdiction  ;  /.  e.,  it  is  exercised  in  legal  contemplation  by 


24  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  sovereign,  who  is  the  fountain  from  which  all  justice  flows,  and 
from  whom,  therefore,  all  courts  derive  their  jurisdiction.  The 
answer  to  the  second  question  is  that  the  object  of  equity,  in  as- 
suming jurisdiction  over  legal  rights,  is  to  promote  justice  by 
supplying  defects  in  the  remedies  which  the  courts  of  law  afford. 
The  answer  to  the  third  question  is  that  the  jurisdiction  is  co- 
extensive with  its  object  ;  that  is,  equity  assumes  jurisdiction  over 
legal  rights  so  far,  and  so  far  only,  as  justice  can  be  thereby  pro- 
moted. But  then  the  question  arises.  How  does  it  happen  that  the 
protection  afforded  by  courts  of  law  to  legal  rights  is  insufficient 
and  inadequate,  and  how  is  it  that  equity  is  able  to  supply  their 
short-comings  .''  The  answer  to  these  questions,  so  far  as  regards 
the  largest  and  most  important  part  of  the  jurisdiction  exercised 
by  equity  over  legal  rights  (namely,  that  exercised  over  common 
law  rights),  will  be  found  chiefly  in  the  different  methods  of  pro- 
tecting rights  employed  by  courts  of  common  law  and  courts  of 
equity  respectively,  /.  c,  in  the  different  methods  of  compulsion 
or  coercion  employed  by  them. 

A  court  of  common  law  never  lays  a  command  upon  a  litigant, 
nor  seeks  to  secure  obedience  from  him.  It  issues  its  com- 
mands to  the  sheriff  (its  executive  officer) ;  and  it  is  through  the 
physical  power  of  the  latter,  coupled  with  the  legal  operation  of 
his  acts  and  the  acts  of  the  court,  that  rights  are  protected  by  the 
common  law.  Thus,  when  a  common-law  court  renders  a  judg- 
ment in  an  action  that  the  plaintiff  recover  of  the  defendant  a 
certain  sum  of  money  as  a  compensation  for  a  tort  or  for  a  breach 
of  obligation,  it  follows  up  the  judgment  by  issuing  a  writ  to  the 
sheriff,  under  which  the  latter  seizes  the  defendant's  property,  and 
either  delivers  it  to  the  plaintiff  at  an  appraised  value  in  satis- 
faction of  the  judgment,  or  sells  it,  and  pays  the  judgment  out  of 
the  proceeds  of  the  sale.  Here,  it  will  be  seen,  satisfaction  of  the 
judgment  is  obtained  partly  through  the  physical  acts  of  the 
sheriff,  and  partly  through  the  operation  of  law.  By  the  former, 
the  property  is  seized  and  delivered  to  the  plaintiff,  or  seized  and 
sold,  and  the  proceeds  paid  to  the  plaintiff.  By  the  latter,  the 
defendant's  title  to  the  property  seized  is  transferred  to  the  plaintiff, 
or  his  title  to  the  property  is  transferred  to  the  purchaser,  and  his 
title  to  its  proceeds  to  the  plaintiff.  So  if  a  judgment  be  rendered 
that  the  plaintiff  recover  certain  property  in  the  defendant's  pos- 
session, on  the  ground  that  the  property  belongs  to  the  plaintiff, 


A   BRIEF  SURVEY  OF  F(2C7TV  JL'RISDICTIOX.  25 

and  that  the  defendant  wrongfully  detains  it  from  him,  the  judg- 
ment is  followed  up  by  a  writ  issued  to  the  sheriff  under  which 
the  lattbr  dispossesses  the  defendant,  and  puts  the  plaintiff  in  pos- 
session. This  is  an  instance,  therefore,  in  which  a  judgment  is 
enforced  through  the  physical  jwwer  of  the  sheriff  alone.  If, 
however,  the  property  be  movable,  and  the  defendant  remove  or 
^onceaMt  so  that  the  sheriff  cannot  find  it,  the  court  js  powerless. 
So,  under  a  judgment  for  the  recovery  of  money,  the  court  is 
powerless,  if  the  defendant  (not  being  subject  to  arrest)  have  no 
property  which  is  capable  of  seizure,  or  none  which  the  sheriff  can 
find  ;  and  it  matters  not  how  much  property  incapable  of  seizure 
he  may  have.  Even  when  the  defendant  is  subject  to  arrest,  his 
arrest  and  imprisonment  are  not  regarded  by  the  law  as  a  means 
of  compelling  him  to  pay  the  judgment  ;  but  his  body  is  taken  (as 
his  property  is)  in  satisfaction  of  the  judgment. 

Nor  is  our  common  law  peculiar  in  its  method  of  protecting 
rights  ;  for  the  same  method  substantially  is  and  always  has  been 
employed  in  most  other  systems  of  law  with  which  we  are  ac- 
quainted. Ncvio  potest  precise  cogi  ad  facticm  was  a  ma.xim  of 
the  Roman  law,  and  it  has  been  adhered  to  in  those  countries 
whose  systems  of  law  are  founded  upon  the  Roman  law. 

^^iitj/;,_jiowever,  has  always  employed,  almost  exclusively,  the 
very  method  of  compulsion  and  coercion  which  the  common  law, 
like  most  other  legal  systems,  has  wholly  rejected;  for  when  a 
person  is  complained  of  to  a  court  of  equity,  the  court  first  ascer- 
tains and  decides  what,  if  anything,  the  person  complained  of 
ought  to  do  or  refrain  from  doing  ;  then,  by  its  order  or  decree, 
it  commands  him  to  do  or  refrain  from  doing  what  it  has  decided 
he  ought  to  do  or  refrain  from  doing  ;  and  finally,  if  he  refuses  or 
neglects  to  obey  the  order  or  decree,  it  punishes  him  by  imprison- 
ment for  his  disobedience.  Even  when  common  law  and  equity 
give  the  same  relief,  each  adopts  its  own  method  of  giving  it. 
Thus,  if  a  court  of  equity  decides  that  the  defendant  in  a  suit 
ought  to  pay  money  or  deliver  property  to  the  plaintiff,  it  does 
not  render  a  judgment  that  the  plaintiff  recover  the  money  or  the 
property,  and  then  issue  a  writ  to  its  executive  officer  command- 
ing him  to  enforce  the  judgment ;  but  it  commands  the  defendant 
personally  to  pay  the  money  or  to  deliver  possession  of  the 
property,  and  punishes  him  by  imprisonment  if  he  refuse  or 
neglect  to  do  it. 


26  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

This  method  was  borrowed  by  the  early  English  chancellors 
from  the  canon  law,  and  their  reasons  for  borrowing  it  were  much 
the  same  as  those  which  caused  its  original  adoption  by  the 
canonists.  The  canon-law  courts  had  power  only  over  the  souls 
of  litigants ;  they  could  not  touch  their  bodies  nor  their  property. 
In  short,  their  power  was  spiritual,  not  physical,  and  hence  the 
only  way  in  which  they  could  enforce  their  sentences  was  by 
putting  them  into  the  shape  of  commands  to  the  persons  against 
whom  they  were  pronounced,  and  inflicting  upon  the  latter  the 
punishments  of  the  church  (ending  with  excommunication)  in 
case  of  disobedience.  If  these  punishments  proved  insufficient  to 
secure  obedience,  the  civil  power  (in  England)  came  to  the  aid 
of  the  spiritual  power,  a  writ  issued  out  of  chancery  {de  excommu- 
nicato capiendo),  and  the  defendant  was  arrested  and  imprisoned. 

When  the  English  chancellor  began  to  assume  jurisdiction  in 
equity  he  found  himself  in  a  situation  very  similar  to  that  of  the 
spiritual  courts.  As  their  power  was  entirely  spiritual,  so  his  was 
entirely  physical.  Through  his  physical  power  he  could  imprison 
men's  bodies  and  control  the  possession  of  their  property  ;  but 
neither  his  orders  and  decrees,  nor  any  acts  as  such  done  in  pur- 
suance of  them,  had  any  legal  effect  or  operation  ;  and  hence  he 
could  not  affect  the  title  to  property,  except  through  the  acts  of 
its  owners.  Moreover,  his  physical  power  over  property  had  no 
perceptible  influence  upon  his  method  of  giving  relief.  Even 
whe:i  he  made  a  decree  for  changing  the  possession  of  property, 
it  took  the  shape,  as  we  have  seen,  of  a  command  to  the  defendant 
in  possession  to  deliver  possession  to  the  plaintiff ;  and  it  was  only 
as  a  last  resort  that  the  chancellor  issued  a  writ  to  his  executive 
oflEicer,  commanding  him  to  dispossess  the  defendant  and  put  the 
plainciff  in  possession. 

Such,  then,  being  the  two  methods  of  giving  relief,  it  is  easy  to 
understand  why  that  of  equity  has  supplemented  that  of  the 
common  law ;  for  the  former  is  strong  at  the  very  points  where  the 
latter  is  weak. 

It  has  been  said  that  the  extent  of  the  jurisdiction  exercised  by 
equity  over  common-law  rights  is  measured  by  the  requirements 
of  justice.  But  what  are  the  requirements  of  justice  }  In  order  to 
answer  that  question  we  must  first  know  definitely  in  what  partic- 
ulars the  common  law  fails  to  give  to  common-law  rights  all  the 
protection  which  it  is  possible  to  give,  and  which,  therefore,  ought 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  2/ 

to  be  given  ;  and  we  shall  have  taken  an  important  step  in  that 
direction  if  we  classify  all  the  remedies  furnished  by  the  common 
law,  and  compare  them  with  the  classification  before  made  of 
judicial  remedies  generally. 

Common-law  actions,  like  actions  generally,  are  either  in  perso- 
nam or  in  rem.  Common-law  actions  in  personam  are  founded 
upon  the  actual  commission  of  a  common-law  tort  or  the  actual 
breach  of  a  common-law  personal  obligation.  Common-law 
actions  in  rem  are  founded  upon  the  ownership  of  corporeal  things, 
movable  or  immovable.  The  relief  given  in  a  common-law 
action  in  persojiamis  always  the  same  ;  namely,  a  compensation  in 
money  for  the  tort  or  the  breach  of  obligation,  the  amount  of 
which  is  ascertained  or  assessed  by  a  jury  under  the  name  of 
damages.^  The  relief  given  in  common-law  actions  in  7'em  is  also 
always  the  same,  namely,  the  recovery  of  the  7'es  ;  but,  then,  it  is  to 
be  borne  in  mind  that  the  only  action  strictly  in  rem  that  lies  for  a 
movable  res  is  the  very  peculiar  action  of  replevin  ;  and,  when 
that  action  cannot  be  brought,  the  only  available  actions  are  trover, 
in  which  the  value  of  the  res  in  money  can  alone  be  recovered, 
and  detinue,  in  which  either  the  res  itself  or  its  value  in  money  is 
recovered,  at  the  option  of  the  defendant.  Indeed,  as  has  been 
already  seen,  the  common  law  has  not  generally  the  means  of 
enabling  a  plaintiff  to  recover  the  possession  of  a  movable  res 
against  the  will  of  the  defendant.  In  replevin  that  object  is 
accomplished  by  dispossessing  the  defendant  of  the  res,  and  placing 
the  same  in  the  plaintiff's  possession,  at  the  very  commencement 
of  the  action  ;  but  that  would  be  obviously  improper  except  when 
the  defendant  has  acquired  the  possession  of  the  res  by  dispossess- 
ing the  plaintiff  of  it.  The  obstacle  in  the  way  of  recovering 
possession  of  the  res  itself  in  an  action  of  detinue  does  not  arise 
from  the  nature  of  the  action,  but  from  the  common-law  mode  of 

1  Our  law  regards  a  debt  as  a  specific  thing  belonging  to  the  creditor  and  in  possession 
of  the  debtor;  and  hence  the  remedy  specially  provided  for  the  breach  of  an  obligation 
to  pay  a  debt,  namely,  the  action  of  debt,  is  technically  an  action  in  rem.  Sometimes 
this  is  the  only  remedy;  but  in  most  cases  the  creditor  has  an  election  between  an  action 
of  debt,  founded  upon  the  debt  itself,  and  an  action  of  assumpsit  or  covenant,  founded 
upon  the  contract  by  which  the  debt  was  created.  In  the  former  action,  the  judgment  is 
that  the  plaintiff  recover  the  debt  itself  as  a  specific  thing;  in  the  two  latter,  the  judgmenf 
is  that  the  plaintiff  recover  damages  for  the  detention  of  the  debt.  Still,  this  is  only  a 
technical  distinction,  for  the  same  amount  is  recovered  either  way,  and  the  mode  of 
enforcing  the  judgment  is  the  same. 


28  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

enforcing  a  judgment.  Detinue  is  in  its  nature  an  action  purely 
ill  rem  ;  and  it  only  ceased  to  be  so  in  practice  because  a  judg- 
ment in  rem  was  found  to  be  wholly  ineffective  ;  and  consequently 
a  judgment  was  rendered  in  the  alternative,  namely,  for  the 
recovery  of  the  res  itself  or  its  value  in  money. 

If,  now,  we  compare  the  foregoing  common-law  remedies  with 
the  scheme  of  remedies  generally,  as  previously  given,  we  find  that 
the  common  law  does  not  attempt  (as  indeed  it  could  not)  to  prevent 
either  the  commission  of  a  tort  or  the  breach  of  an  obligation  ;  ^  ■ 
nor  does  it  attempt  to  give  a  specific  reparation  for  either,  except 
so  far  as  the  recovery  of  the  res  in  an  action  in  rem  may  be  so 
considered  ;  nor  does  it  give  any  action  whatever  for  the  breach 
of  a  real  obligation  ;  nor  does  it  enable  the  owner  of  movable 
things  to  recover  the  possession  of  them  when  wrongfully  detained 
from  him,  except  in  those  cases  in  which  replevin  will  lie.  Of 
these  four  defects  in  common-law  remedies,  the  first  two  are  the 
most  conspicuous  ;  and  it  is  chiefly  for  the  purpose  of  supplying 
those  two  defects  that  equity  has  assumed  jurisdiction  over  torts 
{i.e.,  legal  torts)  and  over  contracts,  —  the  two  largest  and  most 
important  branches  of  the  jurisdiction  exercised  by  equity  over 
legal  rights.  The  jurisdiction  over  torts  has  been  assumed  chiefly 
for  the  purpose  of  supplying  a  remedy  by  way  of  prevention  ;  that 
ever  contracts  for  the  purpose  of  supplying  a  remedy  by  way  of 
specific  reparation.  The  former  is  commonly  treated  of  under  the 
head  of  Injunction  ;  the  latter,  under  the  head  of  Specific  Per- 
formance. 

The  mode  of  giving  relief  in  equity  is  not  only  peculiarly 
adapted  to  the  purpose  of  preventing  the  commission  of  wrongful 
acts,  but  it  is  the  only  mode  in  which  such  a  remedy  is  possible. 
No  mode  of  giving  relief  is,  however,  alone  sufficient  to  make  such 
a  remedy  effective  ;  for  relief  cannot  be  given  until  the  end  of  a 
suit,  i.e.,  until  the  question  of  the  plaintiff's  right  to  relief  has  been 
tried  and  decided  in  the  plaintiff's  favor ;  and,  long  before  that 
time  can  arrive,  the  wrongful  act  may  be  committed,  and  so  pre- 
vention made  impossible.  If,  therefore,  a  court  would  prevent  the 
doing  of  an  act,  it  is  indispensable  that  it  interpose  its  authority, 
not  only  before  any  trial  of  the  question  of  the  defendant's  right 
to  do  the  act,  but  at  the  very  commencement  of  the  suit,  and 
frequently  without  any  previous  notice  to  the  defendant  ;  and 
accordingly  equity  does  so  interpose  its  authority  by  granting  an 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  29 

injunction  against  the  doing  of  the  act  until  the  question  is  tried 
and  decided.  Such  an  injunction  is  called  a  temporary  injunction, 
and  is  not  technically  relief.  If  the  question  is  finally  decided  in 
the  plaintiff's  favor,  the  injunction  is  then  made  perpetual,  and 
becomes  relief. 

Upon  the  whole,  therefore,  the  equitable  remedy  by  way  of 
prevention  is  as  effective  as  such  a  remedy  can  possibly  be  made; 
and  it  is  also  as  effective  and  as  easily  administered  as  any  remedy 
in  equity  is.  Moreover,  the  remedy  by  way  of  prevention,  if  it 
does  not  come  too  late,  is  always  the  easiest,  as  well  as  the  best, 
remedy  that  equity  can  give  in  case  of  a  tort  ;  and,  therefore,  it  is 
never  an  answer  to  a  bill  for  an  injunction  to  prevent  the  commis- 
sion of  a  tort,  that  the  tort,  if  committed,  can  be  specifically 
repaired  by  the  defendant;  and  the  only  question  of  jurisdiction 
that  such  a  bill  can  ever  raise  is  this  :  Will  more  perfect  justice  be 
done  by  preventing  the  tort  than  by  leaving  the  plaintiff  to  his 
remedy  at  law .-'  This,  however,  is  a  very  complex  question,  de- 
pending partly  upon  the  nature  of  the  tort,  and  partly  upon  other 
considerations.  In  respect  to  the  nature  of  the  tort,  also,  there  are 
several  distinctions  to  be  taken.  For  example,  some  torts  cause  no 
specific  injury  ;  others  cause  injury  which,  though  it  is  specific, 
can  be  specifically  repaired  by  the  person  injured;  others  cause 
injury  which,  though  specific  and  incapable  of  specific  reparation, 
can  be  fully  paid  for  in  money.  On  the  other  hand,  a  tort  may 
cause  an  injury  which  is  specific,  and  which  cannot  be  specifically 
repaired  (or  can  be  specifically  repaired  only  by  the  tort-feasor), 
and  which  cannot  be  fully  paid  for  in  money.  So,  too,  the  injury 
caused  by  a  tort,  though  not  specific,  or  though  capable  of  being 
specifically  repaired  by  the  person  injured,  or  though  capable  of 
being  fully  paid  for  in  money,  yet  is  of  such  a  nature  that  it  is 
impossible  to  ascertain  or  estimate  its  extent  with  any  accuracy. 
Whenever,  therefore,  a  tort  will  cause  an  injury  which  is  specific, 
and  which  the  person  injured  cannot  specifically  repair,  and  which 
cannot  be  paid  for  in  money,  (j?- an  injury  the  extent  of  which  it  is 
impossible  to  ascertain  or  estimate  with  any  accuracy,  there  is  a 
prima  facie  case  for  the  interference  of  equity  to  prevent  the  com- 
mission of  the  tort ;  otherwise  the  remedy  at  law  is  adequate  so 
far  as  regards  the  nature  of  the  tort.  If  a  plaintiff  make  out  a 
prima  facie  case  in  one  of  the  two  ways  just  indicated,  he  will  be 
entitled  to  the  interference  of  equity  unless  the  defendant  can  show 


30  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

that  the  damage  which  will  be  caused  to  him  by  the  prevention  of 
the  act  will  so  much  exceed  the  damage  which  will  be  caused  to  the 
plaintiff  by  the  doing  of  the  act  that  the  interference  of  equity  will 
not  be  promotive  of  justice.  If  the  defendant  can  show  that,  the 
plaintiff  should,  it  seems,  be  left  to  his  remedy  at  law.  One 
objection  to  the  interference  of  equity  under  such  circumstances  is 
that  it  is  not  likely  to  have  any  other  effect  than  that  of  compelling 
the  defendant  to  purchase  the  plaintiff's  acquiescence  at  an  exor- 
bitant price. 

It  must  be  confessed,  however,  that  the  foregoing  distinctions, 
though,  it  is  conceived,  they  will  throw  much  light  upon  the  juris- 
diction actually  exercised,  will  not  fully  account  for  it,  either 
affirmatively  or  negatively,  even  when  it  depends  wholly  upon  the 
nature  of  the  tort.  Questions  of  jurisdiction  do  not  receive  the 
same  careful  and  constant  attention  which  is  bestowed  upon  ques- 
tions of  substantive  right ;  and  therefore,  in  dealing  with  such 
questions,  the  elements  of  haste,  accident,  caprice,  the  habits  of 
lawyers,  the  leanings  of  individual  judges,  and  the  ever-changing 
temper  of  public  opinion,  have  been  factors  of  no  inconsiderable 
importance.  The  jurisdiction  of  equity  over  torts  in  particular 
has  grown  up  by  slow,  almost  imperceptible  degrees  ;  and  the 
jurisdiction  exercised  over  one  class  of  torts  has  often  had  little 
influence  upon  the  exercise  of  jurisdiction  over  other  and  analogous 
classes  of  torts. 

It  becomes  necessary,  therefore,  to  inquire  briefly  into  the  juris- 
diction actually  exercised  by  equity  over  different  classes  of  torts. 
There  are  two  large  and  important  classes  of  torts  over  which 
equity  practically  assumes  no  jurisdiction  whatever,  namely,  torts 
to  the  person  and  to  movable  property.  Its  jurisdiction,  there- 
fore, is  substantially  limited  to  torts,  to  immovable  property,  and 
to  incorporeal  property.-  Torts  to  immovable  property  are  waste, 
trespass,  and  nuisance.  Torts  to  incorporeal  property  may,  it 
seems,  all  be  classed  as  nuisances,  though  it  is  usual  to  treat  torts 
to  certain  lawful  monopolies,  not  relating  to  land  {e.g.,  patent-rights 
and  copy-rights),  as  constituting  a  class  by  themselves  under  the 
name  of  infringements  of  the  rights  violated. 

Waste  is  a  tort  committed  by  the  owner  af  a  particular  estate  in 
land,  the  person  injured  being  the  remainder-man  or  reversioner. 
It  is,  therefore,  a  tort  to  the  land,  committed  by  a  person  in  pos- 
session of  the  land,  and  whose  possession  is  rightful,  against  a 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  II 

person  who  has  neither  the  possession  nor  the  right  of  possession. 
Hence,  it  is  not  a  trespass,  the  essence  of  which  is  always  a  wrong- 
ful entry,  and  which  is  always  an  injury  to  the  possession.  It 
always  consists  in  injuring  or  destroying  something  upon  the  land 
which  belongs  to  the  owner  of  the  fee. 

A  nuisance  to  land  is  any  injury  to  it  which  is  committed  with- 
out making  an  entry  upon  the  land,  and  which,  for  that  reason,  is 
not  a  trespass.  Any  injury  to  incorporeal  property  is  a  nuisance, 
as  a  trespass  can  be  committed  only  against  corporeal  things. 
Therefore,  an  act  which  would  be  a  trespass  to  a  corporeal  thing 
will  be  only  a  nuisance  to  an  incorporeal  thing.  For  example, 
an  obstruction  by  A  of  a  right  of  way  which  B  has  over  the  land 
of  C,  is  a  trespass  to  C,  but  only  a  nuisance  to  B. 

Over  all  the  foregoing  torts,  namely,  waste,  trespass  to  land,  and 
nuisance  either  to  land  or  to  incorporeal  property  (including  in- 
fringements of  such  lawful  monopolies  as  patents  and  copyrights), 
equity  exercises  a  jurisdiction  of  greater  or  less  extent ;  and  it 
may  be  stated  as  a  general  rule,  that,  whenever  the  injury  caused 
by  a  tort  belonging  to  either  of  these  classes  will  be  of  a  serious 
and  permanent  character,  equity  will  interfere  to  prevent  it ;  but 
that  for  injuries  which  are  only  technical,  or  slight,  or  temporary, 
or  occasional,  the  person  injured  will  be  left  to  his  remedy  at  law. 
Thus,  the  injury  caused  by  waste  is  necessarily  permanent,  being 
an  injury  to  the  inheritance;  and  in  the  great  majority  of  cases 
the  injury  is  of  a  substantial  character.  Accordingly,  equity 
interferes  to  prevent  waste  almost  as  of  course.  If,  however,  the 
acts  complained  of,  though  technically  waste,  do  not  in  fact  injure 
the  land, —  still  more,  if  they  actually  improve  it, —  the  remainder- 
man or  reversioner  will  be  left  to  his  remedy  at  law. 

Acts  which  will  constitute  waste  when  committed  by  the  owner  | 
of  a  particular  estate,  will,  of  course,  be  (not  waste,  but)  trespass  I 
when  committed  by  a  stranger;,  but  such  acts  clearly  ought  to  be 
prevented  equally  in  either  case.  Accordingly,  the  rule  now  is, 
that  equity  will  interfere  to  prevent  destructive  trespass  to  land,  or 
trespass  in  the  nature  of  waste  ;  but  it  will  not  interfere  to  prevent 
trespasses  which  injure  only  the  present  possession  ;  and,  indeed, 
the  first  instance  in  which  equity  interfered  to  prevent  destructive 
trespass  was  in  the  time  of  Lord  Thurlow.^ 

1  Flamang's  case,  cited  in   Mitchell  v.  Dors,  6  Ves.  147,  in  Hanson  v.  Gardiner,  7 
Ves.  305,  308,  in  Smith  z/.  Collyer,8  Ves.  89,  and  in  Thomas  v.  Oakley,  18  Ves.  1S4, 1S6. 


32  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

In  cases  of  waste  there  is  seldom  any  controversy  about  the 
title  to  the  land.  Acts  in  the  nature  of  waste,  however,  frequently 
raise  questions  of  title ;  for  such  acts  may  be  committed  by  a 
person  who  claims  to  own  the  land,  but  whose  title  is  denied  by 
another  person  who  also  claims  to  own  the  land  ;  and  in  such  a  case 
either  of  the  adverse  claimants  may  be  in  possession.  If  the  acts  be 
committed  by  the  one  out  of  possession,  he  can  always  successfully 
defend  an  action  of  trespass  by  showing  t?hat  the  land  is  his.  If 
the  acts  be  committed  by  the  one  who  is  in  possession,  the  one  out 
of  possession  has  no  remedy  at  law,  except  an  action  of  ejectment 
to  recover  the  land  itself.  If  he  succeed  in  ejectment,  and  recover 
possession  of  the  land,  the  other's  acts  will  then  (but  not  till  then) 
become  trespasses  by  relation,  and  damages  may  be  recovered  for 
them.  How,  then,  will  equity  deal  with  such  a  case,  if  applied  to 
by  either  of  the  claimants  to  prevent  acts  of  the  other  in  the 
nature  of  waste  .-"  The  chief  difficulty  arises  from  the  fact  that  the 
trial  of  the  title  does  not  belong  to  equity.  Each  claimant  hao  a 
right  to  have  the  title  tried  at  law  and  by  a  jury.  Equity  will  not, 
therefore,  interfere  with  the  trial  of  the  title.  What  will  it  do.'*  If 
the  plaintiff  in  equity  is  in  possessionVhere  is  no  serious  difficulty. 
Equity  will  entertain  a  bill,  as  in  other  cases,  and  will  grant  a 
temporary  injunction ;  but  the  injunction  will  not  be  made  per- 
petual until  the  plaintiff  has  recovered  in  an  action  of  trespass  ; 
and  if  the  plaintiff  fail  to  bring  such  an  action  promptly,  or  to 
prosecute  it  with  diligence,  the  injunction  will  be  dissolved  on  the 
defendant's  application.  So,  if  the  action  be  defended  success-' 
fully,  the  bill  in  equity  will  be  dismissed.  If  a  temporary  injunc- 
tion be  obtained  before  any  trespass  has  been  committed,  of  course 
the  plaintiff  in  equity  cannot  maintain  trespass  upon  the  actual 
facts ;  but  equity  will  get  over  that  difficulty  by  directing  the 
plaintiff  to  bring  his  action,  and  to  declare  in  the  usual  form,  and 
by  directing  the  defendant  not  to  traverse  the  declaration,  but  to 
plead  only  his  affirmative  defence  of  title. 

When  the  plaintiff  in  equity  is  out  of  possession  the  difficulty  is 
much  greater.  The  acts  of  the  defendant  are  not  then  trespasses, 
or  torts  of  any  kind,  until  made  so  by  fictitious  relation.  How, 
then,  can  equity  grant  an  injunction  against  acts  which  confessedly, 
upon  the  facts  before  the  court,  are  not  wrongful  .''  Our  law  may 
be  open  to  criticism  for  making  no  provision  (except  such  as  is 
made    by  the    statutes    against    forcible    entry  and  detainer)  for 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  33 

trying  questions  of  possession  in  a  summary  way  ;  but  equity  is 
not  a  lawgiver.  Moreover,  if  equity  is  to  interfere  in  such  a 
case,  it  must,  it  seems,  either  strictly  limit  its  interference  to  the 
granting  of  an  injunction  during  the  pendency  of  an  ejectment,  or 
it  must  take  the  entire  litigation  into  its  own  hands,  assuming  con- 
trol of  the  action  of  ejectment,  if  one  has  been  already  brouo-ht, 
or  directing  one  to  be  brought  and  prosecuted  under  its  control  ; 
and  either  of  these  courses  is  open  to  serious  objection.  In  point 
of  authority  courts  of  equity  have  almost  invariably  refused  to 
interfere  in  such  cases,  though  several  judges  have  expressed 
surprise  and  regret  that  the  jurisdiction  had  not  been  exercised; 
and  intimations  have  been  thrown  out  that  it  would  be  exercised 
whenever  a  sufficiently  strong  case  should  be  presented.  In  one 
case,  also,  a  temporary  injunction  was  granted  ;  but  the  facts  sworn 
to  were  very  strong,  and  the  defendant,  though  served  with  notice, 
did  not  appear  to  oppose  the  motion.^  - 

As  nuisances  consist,  for  the  most  part,  in  so  using  one's  owa  '^ 
land  as  to  injure  the  land  or  some  incorporeal  right  of  one's  neigh- 
bor, it  follows  that  the  injuries  caused  by  nuisances  are  generally 
more  or  less  permanent ;  and,  hence,  they  not  unfrequently  call 
for  the  interference  of  equity  to  prevent  them.  Yet  such  interfer- 
ence has  been  found  to  be  attended  with  great  difficulties.  An 
act  which  is  wrongful  in  itself  may  be  adjudged  wrongful  before  it 
is  committed  as  well  as  afterwards  ;  nor  is  there  any  question  as 
to  the  extent  of  the  wrongfulness,  for  the  entire  act  is  wrongful. 
But  an  act  which  is  in  itself  rightful,  and  which  is  wrongful  only 
because  of  some  effect  which  it  produces,  or  some  consequence 
which  follows  from  it,  can  seldom  be  proved  to  be  wrongful  by  a 
priori  reasoning^^or  otherwise  than  by  actual  experience ;  and 
even  when  it  does  sufficiently  appear  that  a  given  act  done  in  a 
given  way  will  be  wrongful,  it  does  not  follow  that  some  part  of  it 
may  not  be  rightfully  done,  or  even  that  the  entire  act  may  not 
be  done  in  such  a  way  as  to  be  rightful.  For  these  and  similar 
reasons  a  court  of  equity  frequently  finds  it  impossible  to  interfere 
in  case  of  a  nuisance  until  the  act  which  constitutes  the  nuisance 
is  either  fully  completed,  or  at  least  far  advanced  towards. comple- 
tion ;  and,  in  either  of  the  latter  events,  it  will  often  be  found  that 
the  damage  to  the  defendant  which  the  interference  of  the  court 


'  Xeale  v.  Gripps,  4  K.  &  John.  472. 
3 


34  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

will  cause  will  be  out  of  all  proportion  to  the  damage  to  the 
plaintiff  which  it  will  prevent. 

A  distinction  must  be  taken,  however,  between  things  erected  or 
constructed  on  one's  own  land  which  are  in  themselves  a  nuisance 
to  one's  neighbor,  and  those  which  are  so  only  because  of  the 
uses  to  which  they  are  put ;  for,  in  cases  belonging  to  the  latter 
class,  there  may  be  no  occasion  for  equity  to  interfere  until. injury 
is  actually  caused,  nor  is  it  ever  too  late  to  prevent  a  nuisance  for 
the  future  without  causing  anything  to  be  undone. 

So,  too,  when  a  nuisance  is  caused  by  the  carrying  on  of  an 
offensive  trade,  equity  finds  no  especial  difficulty  in  interfering, 
unless  expensive  works  have  been  constructed  for  the  express  pur- 
pose of  carrying  on  that  trade,  and  which  the  abandonment  or 
removal  of  the  trade  will  render  wholly  or  nearly  worthless. 

The  most  difficult  of  all  nuisances  for  a  court  of  equity  to  deal 
with  are  those  caused  by  the  erection  of  massive  and  costly  build- 
ings in  large  cities.  In  such  cases,  if  there  is  danger  of  a  wrong 
being  done,  and  yet  the  court  does  not  see  its  way  to  granting  an 
injunction,  a  convenient  course  is  for  the  court  to  require  the 
building  to  be  constructed  under  its  own  supervision,  by  directing 
the  defendant  to  lay  his  plans  before  the  court,  and  obtain  its 
approval  of  them  before  proceeding.^ 

The  interference  of  equity  to  prevent  the  infringement  of 
patents  and  copyrights  is  attended  with  none  of  the  peculiar  diffi- 
culties which  so  often  occur  in  cases  of  ordinary  nuisance  ;  and, 
though  a  single  infringement  does  not  of  itself  produce  any  per- 
manent injury,  yet  the  example  of  successful  infringement  is  con- 
tagious and  pernicious  ;  and,  as  it  is  extremely  difficult  to  prove  the 
extent  of  the  infringement,  and  so  the  remedy  at  law  is  very  inade- 
quate, equity  interferes  by  way  of  prevention  as  a  matter  of  course. 

Such  are  the  cases  in  which  equity  will  interfere  for  the  preven- 
tion of  a  tort  on  account  of  the  nature  of  the  tort,  or  of  the  injury 
caused  by  it ;  but  there  are  other  cases  in  which  it  interferes  for  a 
wholly  different  reason,  namely,  to  prevent  the  necessity  of  bring- 
ing a  great  or  indefinite  number  of  actions.  Thus,  if  A  commit  a 
tort  against  B,  which  is  capable  of  indefinite  repetition,  and  B 
bring  an  action  and  recover  damages,  and  A  persist  notwith- 
standing in  committing  the  tort,  a  court  of  equity  will  entertain  a 

*  Stokes  V,  City  Offices  Co.,  2  H.  &  M.  650. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  35 

bill  for  an  injunction  ;  for  otherwise  B  might  have  to  bring  an 
indefinite  number  of  actions.  If,  indeed,  there  be  a  question  of 
right  involved  between  A  and  B,  equity  will  not  necessarily 
interfere  after  a  single  trial  at  law,  but  it  will  interfere  as  soon  as  it 
thinks  the  right  has  been  sufficiently  tried.  So  if  many  persons 
are  severally  committing,  or  threatening  to  commit,  similar  torts 
against  one,  and  each  tort  involves  the  same  questions,  both  of 
fact  and  law,  as  every  other,  the  one  may  file  a  bill  against  the 
many  (or  against  a  few  of  them  on  behalf  of  themselves  and  all 
the  others),  and  obtain  an  injunction  ;  for  otherwise  he  would  have 
to  bring  a  separate  action  at  law  against  each.  So,  too,  if  one  per- 
son is  committing,  or  threatening  to  commit,  torts  against  each  of 
many  others,  each  tort  involving  the  same  questions  of  fact  and 
law  as  every  other,  the  many  (or  a  few  of  them  representing  them- 
selves and  all  the  others)  may  file  a  bill  against  the  one,  and  obtain 
an  injunction ;  for  otherwise  each  of  them  would  have  to  bring  an 
action  against  him.  In  such  cases  the  bill  is  commonly  called  a 
bill  of  peace. 

When  a  court  of  equity  is  applied  to  for  a  remedy  by  way  of 
prevention,  the  defendant  may  have  already  begun  the  commission 
of  the  acts  of  which  a  prevention  is  sought,  or  the  plaintiff's  case 
may  be  merely  that  the  defendant  will  commit  them  unless  pre- 
vented by  an  injunction.  In  the  latter  event  the  plaintiff  may 
encounter  a  difficulty  in  the  way  of  proof  ;  for  a  court  of  equity 
cannot  interfere  to  prevent  the  commission  of  an  act,  however 
wrongful,  merely  because  the  defendant  is  liable  to  commit  it, 
nor  even  because  other  people  think  he  will  commit  it ;  it  must  be 
satisfied  that  he  intends  to  commit  it.  And  yet  an  intention  to 
commit  a  wrongful  act  is  apt  to  be  one  of  the  most  difficult  things 
to  prove,  as  a  person  who  has  such  an  intention  is  not  likely  to  pro- 
claim it  beforehand  by  words  or  deeds  ;  and  yet  these  are  the  only 
means  by  which  the  intention  can  be  proved. 

If  the  remedy  by  way  of  prevention  is  not  made  effective  until 
the  commission  of  the  acts  sought  to  be  prevented  has  been  begun, 
the  plaintiff,  of  course,  needs  a  double  remedy ;  namely,  prevention 
as  to  the  future,  and  specific  reparation  or  a  compensation  in 
money  for  the  past.  If  it  is  a  case  in  which  equity  can  and  will 
compel  specific  reparation,  of  course  the  plaintiff  will  obtain  com- 
plete relief  in  equity,  both  as  to  the  past  and  as  to  the  future.  But 
how  will  it  be  if  (as  commonly  happens)  the  plaintiff  can  have 


36  A    BRIEF  SURVEY  OF  E(2UITY  JURISDICTION. 

only  a  compensation  in  money  for  the  past?  On  the  one  hand, 
equity  will  not  entertain  a  bill  for  the  mere  purpose  of  giving  a 
compensation  in  money  for  a  past  tort ;  and  this  for  two  reasons,  — 
namely,  first,  the  remedy  at  law  is  perfectly  effective ;  secondly, 
equity  cannot  assess  damages.  On  the  other  hand,  if  equity  does 
not  give  relief  for  the  past  tort  in  the  case  supposed,  the  burden  of 
two  suits  will  be  imposed  upon  the  parties.  To  avoid  this  evil, 
therefore,  equity  will  give  relief  for  the  past  tort  if  the  plaintiff  will 
accept  such  relief  as  equity  can  give.  It  is,  indeed,  possible  for 
equity  to  give  relief  for  a  past  tort  by  way  of  damages  ;  but  it  can 
only  do  so  by  sending  the  case  to  a  court  of  law  for  an  assessment 
of  damages,  and  that  is  quite  as  objectionable  as  a  separate  action. 
If,  however,  the  tort  be  one  by  which  the  defendant  obtains  a  direct 
and  immediate  profit,  equity  can  and  will  compel  him  to  account 
with  the  plaintiff  for  such  profit  ;  and  this  relief  is  commonly  pre- 
ferred to  an  action  for  damages.  Accordingly,  in  cases  of  waste, 
destructive  trespass,  and  infringement  of  patents  and  copyrights, 
it  is  the  constant  practice  for  the  plaintiff  to  pray  for  an  account 
as  well  as  an  injunction.  In  cases  of  nuisance,  however,  an  account 
is  seldom  asked  for,  as  there  are  seldom  any  profits  sufficiently 
direct  and  immediate  to  be  accounted  for. 

The  next  question  is.  In  what  cases  will  equity  compel  the 
specific  reparation  of  torts  already  committed  .^^  This  question  can 
arise,  of  course,  only  in  reference  to  such  torts  as  are  in  their 
nature  capable  of  being  specifically  repaired  ;  and  it  does  not  often 
arise,  except  in  reference  to  torts  committed  by  the  defendant  on 
his  own  land  {i.e.,  nuisances)  ;  for  in  other  cases  the  plaintiff  may 
generally  as  well  recover  damages  of  the  defendant,  and  then  re- 
pair the  tort  himself. 

It  must  be  confessed  that  the  ordinary  mode  of  giving  relief  in 
equity  is  not  as  well  adapted  to  specific  reparation  as  it  is  to  pre- 
vention. It  is  scarcely  possible,  in  the  nature  of  things,  for  a 
court  successfully  to  compel  the  performance  of  specific  affirma- 
tive acts,  unless  they  be  of  a  very  precise  and  definite  character, 
such,  for  example,  as  paying  money,  producing  documents, 
delivering  possession  of  property,  and  executing  conveyances  of 
property  ;  and  clearly  a  court  ought  to  be  very  cautious  about 
attempting  what  it  cannot  successfully  carry  out.  It  is  singular, 
therefore,  that  courts  of  equity  have  confined  themselves  so  ex- 
clusively to  their  favorite  mode  of  giving  relief.     In  cases  where 


A    BRIEF  Sl/Rl'EV  OF  EQUITY  JURISDICTION.  3/ 

the  title  to  property  is  to  be  affected,  no  other  mode  is  open 
to  them  ;  but,  in  cases  which  involve  only  the  exercise  of  physical 
power,  courts  of  equity  have  all  the  resources  which  it  is  possible 
for  any  court  to  have.  When,  therefore,  justice  requires  that  a 
tort  should  be  specifically  repaired,  it  would  seem  to  be  much 
more  feasible  for  a  court  of  equity  itself  to  undertake  the  repair 
of  it,  at  the  expense  of  the  tort-feasor,  than  to  attempt  to  compel 
the  latter  to  repair  it.  For  example,  specific  reparation  in  the 
case  of  a  nuisance  is  an  abatement  of  the  nuisance  ;  and  there 
seems  to  be  no  good  reason  why  a  court  of  equity  should  not 
abate  a  nuisance,  if  justice  require  its  abatement.  The  ancient 
common  law  regarded  abatement  as  the  proper  remedy  for  a 
nuisance;  and  though  damages  alone  can  be  recovered  at  law  at 
the  present  day,  that  may  be  only  because  the  actions  anciently 
provided  have  been  superseded  by  the  action  on  the  case. 

Courts  of  equity  have  shown  little  disposition,  however,  to  try 
new  modes  of  giving  relief  ;  and  hence  they  seldom  attempt  to 
give  a  remedy  for  a  tort  by  way  of  specific  reparation.  There  is 
believed  to  be  but  one  instance  (and  that  an  ancient  one)  in  cases 
of  waste,^  no  instance  in  cases  of  trespass,  and  but  few  instances 
in  cases  of  nuisance,^  in  which  an  English  court  of  equity  has 
attempted  to  give  such  a  remedy. 

Moreover,  notwithstanding  what  has  been  said  in  favor  of  the 
abatement  of  nuisances,  it  is  undoubtedly  true  that  such  a  juris- 
diction should  be  exercised  in  modern  times  with  great  caution. 
In  many  cases  of  nuisance  there  is  no  reason  for  imputing  any 
intentional  wrong  to  the  defendant ;  and  it  must  not  be  forgotten 
that  the  rights  of  the  latter  are  as  sacred  as  those  of  the  plaintiff; 
and,  if  courts  of  equity  find  insuperable  difificulties  in  the  way  of 
arresting  an  expensive  work  when  near  completion,  much  more 
will  they  find  insuperable  difificulties  in  the  way  of  pulling  it  down 
when  completed.     The  mere  cost  of  abating  such  a  nuisance  may 

1  Vane  v.  Lord  Barnard,  2  Vern.  738;  S.  C.  nom.  Lord  Barnard's  case,  Ch.  Prec,  454 
(the  case  of  Raby  Castle).  According  to  the  report  in  Verngn  the  decree  directed  the 
master  to  see  the  castle  repaired  at  the  defendant's  expense.  Whether  the  decree  was 
ever  performed  or  not  does  not  appear.  It  is  said  not  to  have  been  performed  during 
the  defendant's  life.     See  Rolt  v.  Lord  Somerville,  2  Eq.  Cas.  Abr.  759. 

^  The  first  instance  was  in  the  case  of  Robinson  v.  Lord  Byron,  i  Bro.  C.C.  (Belt's 
ed.)  58S,  2  Cox,  4,  Dickens,  703.  Then  followed  Lane  v.  Newdigate,  10  Ves.  192,  and 
Blakemore  v.  Glamorganshire  Canal  Co.  I  M.  &  K.  154.  In  very  recent  times  instances 
of  such  relief  have  been  much  more  common. 


38  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

easily  exceed  in  amount  the  damage  which  will  be  caused  to  the 
person  injured  by  its  being  suffered  to  remain.  Upon  the  whole, 
therefore,  it  cannot  be  expected  that  a  court  of  equity  will  ever 
make  a  decree  that  a  costly  building,  which  has  been  completed, 
be  pulled  down  ;  and,  if  such  a  decree  shall  ever  be  made,  there  is 
little  likelihood  that  it  will  be  executed. 

There  is,  however,  an  obstacle  in  the  way  of  obtaining  a  remedy 
at  law  for  a  permanent  nuisance,  which  has  not  yet  been  adverted 
to.  Such  a  nuisance  is  a  continuing  tort,  /.  e.,  it  is  a  new  tort  every 
moment  ;  and  the  only  damages  that  can  be  recovered  for  such  a 
tort  are  such  as  have  been  already  suffered  ;  and  hence  the  person 
injured,  if  he  would  obtain  full  indemnity,  must  sue  periodically  so 
long  as  the  tort  continues.  Moreover,  if  he  lets  too  long  a  time 
elapse  without  suing,  the  tort-feasor  may  acquire  a  prescriptive 
right  to  continue  what  was  at  first  a  tort.  If,  therefore,  a  per- 
manent nuisance  has  been  erected,  and  it  cannot  be  abated,  justice 
would  seem  to  require  that  the  person  injured  by  it  should  at  least 
recover  at  once,  and  by  a  single  action,  a  full  compensation  in 
money  for  the  injury,  and  this  measure  of  justice  equity  may,  it 
seems,  grant;  for,  though  equity  cannot  itself  assess  damages,  yet 
it  may  have  che  full  amount  of  the  damages  which  will  be  caused 
by  the  nuisance  assessed  by  means  of  a  feigned  issue,  and  it  may 
then  make  a  decree  that  the  defendant  pay  the  damages  so 
assessed ;  and  if  the  defendant,  having  paid  these  damages,  shall 
be  afterwards  sued  at  law,  he  may  obtain  an  injunction  against  the 
prosecution  of  the  action. 

It  is  well  known  that  every  tort  as  such  dies  with  the  person 
committing  it ;  and  therefore  no  action  at  law  founded  strictly 
upon  a  tort  ever  lies  against  an  executor  or  administrator  as  such, 
or  against  an  heir  as  such.  If,  however,  the  deceased  tort-feasor 
has  been  enriched  by  his  tort,  and  his  ill-gotten  gains  have  gone  to 
his  representatives,  justice  clearly  requires  that  the  latter  should 
restore  them  to  the  person  injured;  and  accordingly  they  may  be 
recovered  by  an  action  at  law,  if  there  be  an  action,  not  founded 
upon  the  tort,  which  is  adapted  to  the  circumstances  of  the  case. 
Thus,  if  a  tort-feasor  have  converted  the  fruits  of  his  tort  into 
money,  an  action  for  money  had  and  received  will  lie  against  his 
executor  or  administrator.  So  if  the  tort  consisted  in  wrongfully 
taking  or  detaining  property,  and  the  property  so  wrongfully  taken 
or  detained  has  gone  to  the  executor  or  administrator,  or  to  the 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  39 

heir  (as  the  case  may  be)  of  the  tort-feasor,  an  action  will,  of 
course,  lie  to  recover  it  back.  Frequently,  however,  there  will  be 
no  action  at  law  which  will  be  adapted  to  the  circumstances  of  the 
case  ;  and  in  all  such  cases  it  seems  that  equity  ought  to  interfere 
by  compelling  a  restoration  to  the  person  injured  of  any  fruits  of 
the  tort  which  can  be  found  in  the  possession  of  the  representa- 
tives of  the  tort-feasor.  This,  however,  is  not  entirely  clear  upon 
authority.^ 

It  has  been  assumed  hitherto  that  every  tort  consists  in  misfeas- 
ance. In  fact,  however,  some  torts  consist  in  nonfeasance  merely  ; 
for  whenever  the  law  imposes  a  duty  upon  a  person,  which  does 
not  amount  technically  to  an  obligation,  any  failure  to  perform  that 
duty  by  which  another  person  is  injured  (as  it  is  not  a  breach  of 
obligation)  is  a  tort.  It  is  generally  true  that  a  misfeasance  is  a 
tort,  and  a  wrongful  nonfeasance  a  breach  of  obligation  ;  but  the 
converse  is  also  sometimes  true  ;  for,  as  a  nonfeasance  may  be  a 
tort,  so  a  misfeasance  may  be  a  breach  of  obligation.  There  is, 
however,  a  broad  distinction,  in  respect  to  equity  jurisdiction, 
between  misfeasance  and  nonfeasance ;  and  this  fact  may  suggest 
the  propriety  of  dividing  the  jurisdiction  over  torts  and  contracts 
into  cases  of  misfeasance  and  cases  of  nonfeasance.  It  certainly 
is  not  convenient  to  consider  those  torts  which  consist  in  nonfeas- 
ance, until  those  nonfeasances  are  considered  which  consist  of 
breaches  of  contract  ;  but  neither  is  it  convenient  to  consider 
those  breaches  of  contract  which  consist  in  misfeasance  until  those 
breaches  of  contract  which  consist  in  nonfeasance  are  considered. 
Therefore,  both  classes  of  cases  will  be  postponed  until  the  juris- 
diction over  affirmative  contracts  is  disposed  of,  i.  e.,  those  con- 
tracts the  breaches  of  which  consist  in  nonfeasances. 


1  See  Bishop  of  Winchester  -'.  Knight,  i  P.  Wms.  406;  Thomas  v.  Oakley,  18  Ves. 
184,  186,  per  Lord  Eldon;  Pulteney  v.  Warren,  6  Ves.  72;  Phillips  v.  Homfray,  24 
Ch.  D.  439- 


ARTICLE    III} 


III. 

i 

Specific  Performance. 

IT  has  been  stated  on  a  previous  page^  that,  while  equity  assumes 
jurisdiction  over  torts  chiefly  for  the  purpose  of  supplying  a 
remedy  byjxayof  prevention,  it  assumes  jurisdiction  over  contracts 
chiefly  for  the  purpose  of  supplying  a  remedy  by  way  of  specific 
reparation.  This  latter  remedy  is,  indeed,  constantly  termed  spe- 
cific performance ;  but  that  is  in  strictness  a  misnomer.  The 
remedy  by  way  of  prevention  is  the  true  specific  performance;  for 
the  object  of  that  remedy  is  to  prevent  a  violation  by  the  defendant 
of  the  plaintiff's  right,  and,  whenever  the  remedy  is  successful,  that 
object  is  completely  accomplished.  But  to  prevent  a  defendant 
from  violating  a  plaintiff's  right  is  to  compel  him  specifically  ( z>., 
strictly  and  literally )  to  perform  his  duty  to  the  plaintiff.  There 
is,  indeed,  this  difference  between  the  terms  "prevention"  and 
"  specific  performance,','  namely,  that  the  former  is  negative,  while 
the  latter  is  affirmative  ;  and  hence  when  equity  enforces  perform- 
ance of  a  negative  duty,  the  remedy  is  properly  called  prevention, 
while,  if  equity  did  in  truth  enforce  performance  of  affirmative 
duties,  the  remedy  would  properly  be  called  specific  performance. 
But,  in  truth,  equity  does  not  attempt  to  enforce  performance  of 
affirmative  duties,  and  therefore  it  does  not  attempt  to  enforce  per- 
formance of  contracts,  /.  e.,  affirmative  contracts.     What  is  com- 

1  I  Harv.  L.  Rev.  355. 

2  Supra,  page  28. 


A   BRIEF  SC/RVEY  OF  EQUITY  JURISDICTIOy.  41 

monly  called  the  specific  performance  of  contracts  is  the  doing  of 
what  was  agreed  to  be  done,  but  not  at  the  time  when  it  was  agreed 
to  be  done ;  i.e.,  not  till  after  the  time  when  it  was  agreed  to  be 
done  is  past,  and  hence  not  till  the  contract  is  broken.  In  order 
to  obtain  strict  performance  of  a  contract,  a  bill  would  of  course 
have  to  be  filed  before  the  time  for  performing  the  contract  ar- 
rived ;  but  in  fact  a  bill  will  not  lie  (any  more  than  an  action  at 
law  will  lie )  upon  an  afifirmative  contract  until  the  contract  is 
broken. 

What,  then,  is  the  reason  of  this  sharp  distinction  between  neg- 
ative and  affirmative  duties,  namely,  that  a  bill  will  lie  to  prevent 
a  breach  of  the  former,  while  a  bill  will  lie  only  to  enforce  a  spe- 
cific reparation  of  a  breach  of  the  latter?  First,  it  is  a  fundamental 
principle  of  procedure  that,  before  any  application  can  be  made 
to  a  court  for  relief  in  respect  to  a  right,  the  right  must  be 
actually  violated.  This  principle  is  so  universal,  in  all  systems 
of  law  known  to  Western  civilization,  that  writers  upon  jurispru- 
dence assume^  ( if  they  do  not  state )  that  no  substantive  right, 
whether  absolute  or  relative,  will  ever  support  an  action  ;  that 
every  action  is  founded  upon  a  right  resulting  from  the  violation 
of  a  substantive  right,  the  law  imposing  upon  every  person  who 
violates  a  substantive  right  an  obligation  to  indemnify  the  person 
injured,  and  of  course  vesting  in  the  latter  a  correlative  right  to  be 
indemnified  for  the  injury  ;  and  hence  that  the  violation  of  some 
substantive  right  is  always  a  sine  qua  non  of  the  maintenance  of  an 
action.  It  follows,  therefore,  that  all  remedies  by  way  of  prevent- 
ing the  violation  of  rights  are  exceptions  to  an  acknowledged  rule  ; 
and  exceptions  to  an  acknowledged  rule  must  never  be  so  extended 
as  to  destroy  the  rule  itself. 

Secondly,  it  has  already  been  seen^  that  the  violation  of  nega- 
tive duties  could  not  be  effectively  prevented,  unless  the  court 
could  provisionally  restrain  their  violation  during  the  pendency  of 
suits  to  prevent  their  violation  ;  i.  e.,  unless  the  court  could  provi- 
sionally restrain  defendants  from  doing  certain  acts  before  the 
court  knows  or  can  know  that  the  acts  are  such  as  ought  to  be 
restrained.  The  same  thing  is  equally  true  of  the  violation  of 
affirmative  duties  (though  for  somewhat  different  reasons)  ;  for  an 
affirmative  duty  is  violated  the  moment  a  certain  length  of  time 

'  See  Holland,  Jurisprudence  (3d  ed.),  ch.  13. 
*  Supra,  pages  2S-29. 


42  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

elapses,  or  a  certain  event  happens  without  its  being  performed ; 
and,  in  the  great  majority  of  cases,  the  time  for  performance  would 
arrive  before  a  decree  for  performance  could  possibly  be  obtained. 
Could,  then,  a  court  of  equity  restrain  the  violation  of  an  affirma- 
tive duty  provisionally  and  before  any  trial  of  the  right,  as  it  does 
in  case  of  a  negative  duty  ?  Clearly  not ;  for  the  only  way  of 
restraining  the  violation  of  an  affirmative  duty  is  by  compelling 
performance  of  it ;  and  hence  any  restraint  of  the  violation  of  an 
affirmative  duty  is  of  necessity  (not  provisional,  but)  final.  To 
impose  such  a  restraint,  therefore  (/.  ^.,  to  compel  performance  of 
the  duty),  before  the  hearing  of  the  cause,  would  be  to  decide  the 
cause,  and  decide  it  finally,  without  any  trial,  and  thus  to  render 
a  trial  entirely  futile ;  for,  though  a  trial  should  be  had,  and  should 
result  in  establishing  that  no  performance  was  due  to  the  plaintiff, 
yet  the  court  could  not  undo  what  it  had  done. 

It  will  be  seen,  therefore,  that  there  is  a  very  broad  distinction, 
in  respect  to  the  power  of  a  court  of  equity  to  interfere  before 
trial,  between  affirmative  and  negative  duties,  —  between  restrain- 
ing a  defendant  from  acting,  and  compelling  him  to  act.  And  yet 
this  distinction  has  sometimes  been  lost  sight  of.  For  example, 
where  a  court  of  equity  is  called  u^on  to  compel  a  defendant  to 
undo  a  tort  which  he  has  already  committed,  i.  c,  to  make  specific 
reparation  for  a  tort,  what  is  required  of  the  defendant  is  the  per- 
formance of  an  affirmative  duty ;  and  therefore  the  court  cannot 
properly  interfere  until  the  cause  is  heard,  and  a  decree  made  in 
the  plaintiff's  favor.  And  yet  courts  (misled  perhaps  by  the  fact 
that  the  subject  of  the  suit  was  a  tort)  have  sometimes  compelled 
defendants  to  act  in  such  cases  by  order,  made  upon  motion  and 
before  the  hearing  of  the  cause,  —  not  indeed  directly,  but  indi- 
rectly, i.  e.,  not  by  commandingthem  to  undo  the  tort,  but  by  com- 
manding them  not  to  omit  undoing  it,  as  if  the  distinction  between 
affirmative  and  negative  were  merely  a  distinction  of  words. ^  It  is 
idle  to  attempt  to  support  such  orders  by  calling  them  mandatory 
injunctions,  for  the  reason  why  an  injunction  can  be  granted  before 
the  hearing  is  that  it  is  prohibitory, —  not  mandatory. 

There  is  another  reason  why  it  is  not  practicable  for  a  court  of 
equity  to  enforce  strict  performance  of  an  affirmative  contract, 
namely,  that  there  is  but  one  day  when  such  performance  is  possi- 
ble, i.  e.,  the  day  when  performance  becomes  due ;  and  while  it  is 
1  See  cases  cited  supra,  page  37,  note  2. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  43 

frequently  possible  for  equity  to  compel  a  defendant  to  do  an  act 
against  his  will,  it  is  quite  out  of  its  power  to  compel  him  to  do 
it  on  a  particular  day  previously  appointed. 

Finally,  it  has  already  been  seen-'  that  equity  will  not  entertain 
a  bill  to  prevent  a  breach  even  of  a  negative  duty,  unless  it  ap- 
pear that  a  breach  is  actually  contemplated  by  the  defendant ; 
and,  as  a  breach  of  an  affirmative  duty  consists  merely  of  inac- 
tion, it  is  comparatively  seldom  that  an  intention  to  commit  a 
breach  of  an  affirmative  duty  can  be  proved. 

Upon  the  whole,  therefore,  equity  never  attempts  to  compel 
strict  performance  of  affirmative  contracts,  but  contents  itself  with 
compelling  reparation  for  breaches  of  them.  This  reparation,  as 
we  have  seen,  equity  makes  specific,  so  far  as  possible  ;  namely,  by 
compelling  the  thing  to  be  done  which  was  agreed  to  be  done, 
though  the  time  when  it  was  agreed  to  be  done  is  past.  Such  a 
reparation  will,  however,  presumptively  be  incomplete,  for  the 
plaintiff  will  have  been  kept  out  of  his  right  from  the  time  when 
performance  was  due  to  the  tim^  when  it  is  actually  obtained ; 
and  he  will  therefore  be  entitled  to  compensation  for  that 
injury.  The  measure  of  such  compensation,  in  case  of  unilateral 
contracts,  will  generally  be  the"" actual  value  of  the  use  and  enjoy- 
ment of  the  thing  due  to  the  plaintiff  during  the  time  that  he  has 
been  deprived  of  its  use  and  enjoyment.  In  case  of  most  bilat- 
eral contracts,  as  the  plaintiff  is  not  required  to  perform  until  the 
defendant  performs,  the  measure  of  the  plaintiff's  compensation 
will  generally  be  only  the  difference,  if  any,  between  the  benefit 
that  he  has  derived  from  the  delay  in  performing  his  own  side  of 
the  contract,  and  the  injury  that  he  has  suffered  from  the  defend- 
ant's delay  in  performing  his  side  of  the  contract.  In  an  action 
at  law  this  compensation  would  be  given  by  a  jury  in  the  shape 
of  damages;  and,  as  a  judge  in  equity  cannot  perform  the  func- 
tion of  a  jury  in  assessing  damages,  cases  may  arise  in  which  the 
plaintiff's  compensation  for  delay  in  performing  the  contract  will 
have  to  be  assessed  by  a  jury.^  In  most  cases,  however,  equity 
will  be  able  to  ascertain  the  compensation  to  which  the  plaintiff  is 

1  Supra,  page  35. 

2  For  example,  when  it  is  held  that  the  plaintiff  is  entitled  to  special  damages  for  the 
defendant's  delay  in  performing  the  contract.  For  an  instance  of  this,  see  Cory  v.  Thames 
Iron  Works  and  Ship-building  Co.,  n  W.  R.  589,  L.  R.  3  Q.  B.  iSi.  In  Jaques  v.  Mil- 
lar, 6  Ch.  D.  153,  special  damages,  to  which  the  plaintiff  was  held  to  be  entitled,  were 
assessed  by  the  judge  in  equity;  but  this  was  done  under  the  authority  of  a  statute. 


44  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

entitled  by  its  own  method,  namely,  by  computation  and  account. 
For  example,  in  the  common  case  of  a  contract  for  the  purchase 
and  sale  of  land,  the  proper  compensation  for  delay  in  paying  the 
purchase-money  is  legal  interest  on  the  purchase-money,  while  the 
proper  compensation  for  delay  in  conveying  the  land  is  the  rents 
and  profits  of  the  land.  Accordingly,  in  a  suit  by  a  vendee,  if  the 
rents  and  profits  of  the  land  exceed  the  interest  on  the  purchase- 
money,  the  vendee  will  recover  the  difference.  So,  in  a  suit  by 
the  vendor,  if  the  interest  on  the  purchase-money  exceed  the  rents 
and  profits  of  the  land,  the  vendor  will  recover  the  difference. 
This  mode  of  ascertaining  the  compensation  to  which  a  plaintiff 
is  entitled  seems  not  to  require  any  special  justification,  as  it 
seems  that  a  jury  ought,  in  most  cases,  to  act  upon  the  same 
principles  in  assessing  a  plaintiff's  compensation  by  way  of  dam- 
ages. In  fact,  however,  equity  acts  upon  a  very  clear  principle  of 
its  own,  namely,  that  what  ought  to  have  been  done  shall  be  con- 
sidered as  having  been  done.  For  example,  in  case  of  a  contract 
for  the  purchase  and  sale  of  land,  if  the  purchase  be  completed 
under  the  decree  of  a  court  of  equity,  the  rights  of  the  parties  will 
be  regarded  as  the  same  in  equity  that  they  would  have  been  at  law, 
if  the  purchase  had  been  completed  pursuant  to  the  contract ;  or, 
in  other  words,  the  completion  of  the  purchase  will  be  held  in 
equity  to  relate  back  to  the  time  when  by  the  contract  it  ought  to 
have  been  completed.  But  if  the  purchase  had  been  completed 
at  the  time  stipulated  for  in  the  contract,  the  vendee  would  have 
had  the  use  and  enjoyment  of  the  land,  and  the  vendor  would  have 
had  the  use  and  enjoyment  of  the  purchase-money  from  that  time  ; 
and  hence  it  follows  that  the  vendor,  having  had  the  use  and  en- 
joyment of  the  land  when  the  vendee  ought  to  have  had  it,  must 
account  to  the  vendee,  and  the  vendee,  having  had  the  use  and 
enjoyment  of  the  purchase-money  when  the  vendor  ought  to  have 
had  it,  must  account  to  the  vendor. 

It  has  been  assumed  hitherto  that  the  plaintiff  alone  can  recover 
a  compensation  for  delay  in  performing  the  contract  ;  and  yet  a 
mutual  accounting,  on  the  principles  before  stated,  may  result  in  a 
balance  in  favor  of  the  defendant.  Shall  the  defendant  in  that 
event  recover  the  balance  in  his  favor  .-*  It  may  be  objected,  first, 
that  a  decree  cannot  be  rendered  in  favor  of  a  defendant  as  such, 
and  that,  if  a  defendant  would  have  a  decree  in  his  favor,  he  must 
file  a  cross-bill ;  secondly,  that,  even  if   a  defendant   should  file  a 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  45 

cross-bill,  he  never  could  be  entitled  to  a  decree  in  his  favor,  as  he 
stands  before  the  court  in  the  light  simply  of  a  wrong-doer,  and 
therefore  is  not  in  a  condition  to  set  up  any  claim  in  his  own  favor. 
Neither  of  these  objections,  however,  is  valid.  First,  in  a  suit  for 
the  specific  performance  of  a  bilateral  contract,  the  two  sides  of 
which  constitute  mutual  and  concurrent  conditions,  there  is,  as 
will  be  seen  presently,  no  difference  between  the  plaintiff  and  the 
defendant  as  sucJi,  i.  c,  they  are  both  plaintiffs  and  both  defendants, 
and  any  decree  which  is  made  is  in  favor  of  both  and  against  both. 
Secondly,  in  such  a  suit  it  does  not  follow,  as  will  be  seen  here- 
after, that  the  defendant  —  still  less  that  the  defendant  alone  — 
has  broken  the  contract.  The  contract  may  have  been  broken  by 
both  parties,  or  it  may  have  been  broken  by  the  plaintiff  alone. 
Whenever,  therefore,  any  distinction  is  to  be  made  between  the 
parties  to  such  a  suit,  it  must  be,  not  between  the  plaintiff  and  de- 
fendant as  such,  but  between  the  one  who  has  broken  the  contract 
and  the  one  who  has  not.  In  most  cases,  however,  no  distinction 
should  be  made  between  the  parties,  so  far  as  regards  the  mutual 
accounting,  but  the  vendee  should  be  charged  with  legal  interest 
on  the  purchase-money,  and  the  vendor  with  the  rents  and  profits 
of  the  land,  as  before  stated.  If,  however,  a  vendee  have  his 
money  ready  at  the  day  fixed  for  the  performance  of  the  contract, 
and  the  performance  be  delayed  through  the  default  of  the  vendor, 
and  the  vendee  keep  himself  in  constant  readiness  to  perform  by 
letting  his  money  lia  idle,  he  will  not  be  required  to  pay  interest. 
In  such  a  case,  however,  the  vendee  ought  to  notify  the  vendor 
that  the  money  is  lying  idle  ;  and  it  would  be  prudent  for  him  to 
deposit  the  money  in  a  bank  to  a  separate  account,  and  to  notify 
the  vendor  that  he  had  done  so.  So  if  a  vendor  be  ready  at  the 
day  to  perform  on  his  part,  and  the  performance  be  delayed 
through  the  default  of  the  vendee,  the  vendor  will  seldom,  if  ever, 
be  liable  beyond  the  rents  and  profits  actually  received  by  him  ; 
but  if  performance  be  delayed  through  the  default  of  the  vendor, 
he  will  be  liable  for  such  rents  and  profits  as  he  might  with 
reasonable  diligence  have  received  ;  and  if  the  property  have  been 
injured,  or  have  deteriorated  in  value,  through  his  fault,  he  will 
be  required  to  compensate  the  vendee  in  damages  for  the  injury  or 
deterioration  in  value  ;  and  these  damages  will  frequently  have  to 
be  assessed  by  a  jury.  ^ 

1  See  Cory  v.  Thames  Iron  Works  and  Ship-building  Co.,  supra. 


46  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

When  equity  enforces  specific  reparation  for  the  breach  of  a 
bilateral  contract,  the  two  sides  of  which  constitute  mutual  and 
concurrent  conditions,  it  encounters  a  difficulty  of  procedure  which 
is  unknown  to  courts  of  common  law ;  for,  as  by  the  contract 
neither  party  is  bound  to  trust  the  other,  but  each  may  insist  that 
both  shall  perform  at  the  same  moment  of  time,  and  as  equity  en- 
forces performance  of  the  contract  in  every  point  except  that  of 
time,  it  follows  that  equity  cannot  enforce  performance  by  the 
defendant  unless  the  plaintiff  also  performs  concurrently.  If  this 
were  all,  there  would  be  no  serious  difficulty,  so  far  as  regards 
procedure ;  for  then  it  would  only  be  necessary  for  the  court  by  its 
decree  to  appoint  a  time  and  place  for  performance  by  the  defend- 
ant, and  to  direct  him  to  perform,  provided  the  plaintiff  also  per- 
formed. That,  however,  would  be  unjust  to  the  defendant  ;  for  it 
would  impose  upon  him  the  burden  of  making  all  the  necessary 
preparations,  and  holding  himself  in  readiness  for  performing  his 
part  of  the  contract,  and  yet  leave  him  in  a  state  of  complete  un- 
certainty, up  to  the  last  moment,  as  to  whether  the  plaintiff  would 
perform  his  part.  Accordingly,  equity  says  the  plaintiff  shall  not 
be  permitted  to  blow  hot  and  cold,  but  that,  having  elected  to  have 
the  terms  of  the  contract  carried  out,  notwithstanding  the  time 
stipulated  for  is  past,  he  shall  be  bound  by  his  election,  and  shall 
therefore  be  compelled  to  perform  on  his  part.  But  how  can  per- 
formance be  enforced  against  a  plaintiff,  against  whom  no  com- 
plaint is  made,  nor  any  relief  asked,  and  who  would  not  be  before 
the  court  at  all,  had  he  not  come  before  it  voluntarily,  seeking 
relief  against  the  defendant  ?  The  difficulty  might  perhaps  be 
met  by  the  defendant's  filing  a  cross-bill,  praying  that,  if  he  be 
compelled  to  perform,  the  plaintiff  also  be  compelled  to  perform 
concurrently  with  the  defendant.  But  clearly  the  defendant  is  not 
bound  to  file  a  cross-bill  ;  he  does  not  wish  to  have  the  contract 
performed,  and  he  is  not  bound  to  assist  the  plaintiff  in  his  en- 
deavors to  compel  the  performance  of  it  ;  nor  will  the  defendant's 
refusal  to  file  a  cross-bill  justify  the  court  in  making  a  decree 
against  the  defendant  which,  but  for  such  refusal,  would  be  unjust. 
However,  courts  of  equity  have  succeeded  in  surmounting  this 
difficulty  without  any  stretching  of  their  powers,  and  without  doing 
any  injustice  to  either  party;  for  they  make  it  a  condition  of 
giving  relief  to  the  plaintiff  that  he  shall  submit  to  have  a  decree 
made  against  himself  also,  and  indeed  they  treat  a  plaintiff  as  so 


A   BRIEF  SURVEY  OF  E(2C//TV  JURISDICTION.  47 

submitting  by  implication.  Accordingly,  v/henever  a  decree  is 
made  for  the  performance  of  a  bilateral  contract,  the  two  sides  of 
which  constitute  mutual  and  concurrent  conditions,  the  court  will, 
if  necessary,  appoint  a  time  and  place  for  performance,  and  wiH 
require  both  parties  to  perform  at  such  time  and  place  concur- 
rently ;  and,  if  either  of  them  refuses  or  neglects  so  to  perform,  he 
will  be  punished  for  contempt  on  the  application  of  the  other. 

Having  thus  seen  how  equity  exercises  jurisdiction  over  affirma- 
tive contracts  (and  what  is  true  in  this  respect  of  affirmative  con- 
tracts is  equally  true  of  all  affirmative  obligations,  whether  created 
by  contract  or  not),  we  are  prepared  to  inquire  over  what  af- 
firmative contracts  or  obligations  equity  will  assume  jurisdiction. 
And  here  it  must  be  borne  in  mind  that  we  are  now  dealing  only 
with  the  legal  rights  created  by  contracts  and  other  obligations. 
When  contracts  or  other  obligations  are  the  means  of  creating 
equitable  rights,  such  rights  can,  of  course,  be  enforced  by  equity 
alone  ;  and  hence  equity  assumes  jurisdiction  over  such  rights  as 
of  course.  In  what  cases,  then,  will  equity  assume  jurisdiction  over 
the  legal  rights  created  by  affirmative  contracts  and  other  affirma- 
tive obligations.?  In  all  cases  in  which  these  two  questions  can  be 
answered  in  the  affirmative,  namely  :  First,  will  a  compensation  in 
money  be  an  inadequate  remedy  for  a  breach  of  the  contract  or  other 
obligation  }  Secondly,  can  equity  enforce  a  specific  reparation  of 
the  breach.?  It  will  be  convenient  to  consider  the  second  of  these 
questions  first ;  for  the  first  question  will  arise  only  in  those  cases 
in  which  the  second  can  be  answered  in  the  affirmative.  The 
second  question  can  be  easily  answered  with  sufficient  accuracy 
for  most  purposes.  If  a  contract  consists  in  giving  {dando), 
equity  can  enforce  a  specific  reparation  for  a  breach  of 
it ;  if  it  consists  in  doing  {faciendo),  it  cannot. ^  Accordingly, 
equity  will  assume  jurisdiction,  e.  g.,  over  all  contracts  for  buying 

'  Of  course  it  is  not  meant  that  it  is  impossible  for  equity  to  enforce  any  contract  which 
consists  in  doing;  but  only  that  the  enforcement  of  such  contracts  in  equity  is  likely  to 
involve  so  much  difficulty  that  equity  will  not  attempt  to  enforce  them.  To  this  rule  there 
are,  however,  exceptions.  For  example,  in  England  if  a  railway  company  purchase  land 
ever  which  to  construct  its  line,  and  agree,  as  a  part  of  the  consideration  for  the  sale,  to 
construct  certain  works  on  the  land  purchased,  either  with  a  view  to  rendering  the  railway 
less  injurious  to  the  vendor,  or  with  a  view  to  affording  facilities  to  the  vendor  for  using 
the  railway,  equity  will  compel  the  railway  company  to  construct  the  works.  Lytton  v. 
The  Great  Northern  Railway  Co.,  2  Kay  &  J.  394;  Storer  v.  The  Great  Western  Railway 
Co.,  2  Y.  &  Coll.  C.  C.  48.  This  exception  is  supported  by  very  strong  reasons  :  first,  the 
railway  company  is  paid  in  advance  for  constructing  the  works;  secondly,  the  vendor 


48  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

and  selling  and  for  exchanging  one  thing  for  another,  if  a  com- 
pensation in  money  be  an  inadequate  remedy  for  a  breach  of  them  ; 
but  it  will  not  assume  jurisdiction,  e.g.,  over  contracts  for  services 
or  building  contracts.  In  what  cases,  then,  will  equity  deem  a  com- 
pensation in  money  an  inadequate  remedy  for  the  breach  of  a  con- 
tract which  consists  in  giving?  Here  again  a  distinction  must  be 
taken  between  those  contracts  which  consist  in  giving  something 
which  is  specified  and  identified  by  the  contract,  and  those  which 
consist  in  giving  something  of  the  kind,  quality,  or  description 
specified  in  the  contract.  In  cases  belonging  to  the  second  class, 
it  seems  that  a  compensation  in  money  will  always  be  an  adequate 
remedy  for  a  breach  of  the  contract  ;  for  the  thing  contracted  for 
cannot  be  worth  more  to  any  one  than  the  sum  of  money  for 
which  it  can  be  purchased  in  the  market,  and  that  sum  will  be  the 
measure  of  the  compensation  which  a  jury  will  give  for  a  breach 
of  the  contract.  It  cannot,  therefore,  be  very  material  to  the  per- 
son who  has  contracted  for  the  thing  whether  he  receive  the  thing 
itself  or  a  sum  of  money  with  which  he  can  purchase  the  thing.^ 
In  cases  belonging  to  the  first  class,  on  the  other  hand,  there  is 
but  one  thing  in  existence  which  will  satisfy  the  contract.  If, 
therefore,  that  one  thing  has  a  value  in  the  eyes  of  the  person  who 
contracted  for  it,  which  cannot  be  measured  by  money,  or  a  greater 
money  value  than  it  can  properly  have  in  the  eyes  of  a  jury,  it  is 
clear  that  a  compensation  in  money  will  not  be  an  adequate  substitute 

cannot  construct  the  works  himself;  thirdly,  an  English  railway  company  is  more  amen- 
able to  the  authority  of  a  court  of  equity  than  is  an  ordinary  private  individual. 

Another  exception  (founded  however  upon  very  different  reasons)  is  where  an  informal 
agreement  is  made  to  enter  into  a  formal  contract.  Although  the  informal  agreement, 
in  such  a  case,  consists  in  doing,  yet  it  is  as  easily  enforced  as  any  contract  which  consists 
in  giving;  for  all  that  the  defendant  is  required  to  do  is  to  sign  (or  sign  and  seal)  and 
deliver  the  formal  contract,  when  the  latter  has  been  drawn  up  (under  the  direction  of  a 
Master,  if  necessary)  in  conformity  with  the  informal  agreement.  Whenever,  therefore, 
damages  will  not  be  an  adequate  remedy  for  a  breach  of  the  informal  agreement,  equity 
will  compel  an  execution  of  the  formal  contract.  Accordingly,  an  informal  agreement  to 
insure  {i.e.^  to  issue  a  policy  of  insurance)  will  be  enforced  in  equity;  for,  if  the  insured 
should  bring  an  action  at  law,  he  would  recover  only  nominal  damages.  It  is  possible, 
indeed,  that  the  insured  might  recover  for  a  loss  in  an  action  at  law  without  a  policy;  but, 
even  if  he  could,  the  loss  would  constitute  a  separate  and  distinct  cause  of  action,  and 
would  not  affect  the  right  of  the  insured  to  have  a  policy. 

1  The  English  courts  have,  however,  made  one  extraordinary  exception  to  the  rule  that 
such  contracts  will  not  be  enforced  in  equity,  namely,  in  the  case  of  contracts  for  the  pur- 
chase and  sale  of  shares  in  companies.  This  exception  was  first  established  by  the  case 
of  Duncuft  V.  Albrecht,  12  Sim.  189.  That  case  has  not  generally  been  followed,  how- 
ever, in  this  country. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  49 

for  the  thing  itself.  But  here  an  important  question  arises,  namely, 
whether  the  jurisdiction  of  equity  will  depend  upon  the  nature  of 
the  thing  contracted  for,  or  upon  the  views  and  intentions  of  the 
person  who  contracts  for  it  in  the  particular  case.  If  it  depends 
upon  the  former,  it  is  a  question  of  law,  and  it  should  be  the  sub- 
ject of  settled  rules  ;  if  it  depends  upon  the  latter,  it  is  a  question 
of  fact,  and  hence  the  fact  must  be  tried  as  often  as  the  question 
arises.  Unfortunately,  the  question  cannot  be  answered  unquali- 
fiedly either  way  ;  but,  for  the  most  part,  the  jurisdiction  of  equity 
undoubtedly  depends  upon  the  nature  of  the  thing  contracted  for. 
To  make  it  depend  upon  the  actual  views  and  intentions  of  one  of 
the  contracting  parties  would  be  subject  to  two  very  serious  objec- 
tions :  first,  that  the  decision  of  the  question  of  jurisdiction  would 
involve  a  ruinous  expense  both  to  the  parties  and  to  the  public  ; 
secondly,  it  would  involve  an  inquiry  which  a  court  of  justice  can 
seldom  enter  upon  with  much  chance  of  getting  at  the  truth,  and 
which,  therefore,  it  should  never  enter  upon  except  from  necessity. 
Upon  the  whole,  it  may  be  said  that  the  jurisdiction  will  depend 
exclusively  upon  the  nature  of  the  thing  contracted  for,  wherever 
the  court  can  see  it.',  way  to  laying  down  an  absolute  rule  ;  but 
where  it  cannot,  it  would  be  too  much  to  say  that  all  evidence  as 
to  the  views  and  intentions  with  which  the  thing  was  contracted 
for  in  the  particular  case  will  be  excluded. 

In  what  cases,  then,  will  equity  assume  jurisdiction  over  a  con- 
tract which  consists  in  giving  a  specified  thing  on  account  of  the 
nature  of  the  thing  .?  It  will  do  so,  first,  whenever  the  thing  is  land, 
or  any  interest  in  land,  or  any  incorporeal  thing  material  to  the 
enjoyment  of  land ;  secondly,  whenever  the  thing  is  a  vessel, 
or  any  interest  in  a  vessel ;  ^  thirdly,  whenever  the  thing  is  a 
chattel  for  which  no  substitute  can  be  obtained,  or  for  which  a 
substitute  can  be  obtained  only  with  great  difficulty.  It  must  be 
confessed  that  this  last  rule  is  somewhat  vague  ;  but  we  must 
choose  between  a  vague  rule  and  no  rule  at  all.  Unfortunately, 
also,  there  are  but  few  precedents  by  which  the  application  of  this 
rule  can  be  illustrated.  One  reason  of  this  will  doubtless  be  found 
in  the  peculiar  rule  of  our  law  respecting  the  sale  of  chattels  (other 
than  vessels) ;  namely,  that  the  moment  that  a  contract  is  made  for 
the  sale  of  a  chattel,  the  title  to  the  chattel  passes  from  the  seller 

1  Hart  V.  Herwig,  L.  R.  S  Ch.  860.     The  statement  in  the  text  assumes  that  the  juris- 
diction of  equity  is  not  interfered  with  by  registry  acts.     See  infra,  page  62,   note  2. 

4 


so  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

to  the  purchaser.  In  consequence  of  this  rule,  the  right  of  a  pur- 
chaser of  a  specific  chattel  is  commonly  a  right  of  property  from 
the  beginning, — not  a  right  resting  upon  contract.  There  is, 
however,  a  rule  of  equity  jurisdiction,  which  is  so  strictly  analogous 
to  the  one  under  consideration,  that  the  precedents  which  illustrate 
the  application  of  the  former  will  illustrate  the  application  of  the 
latter  also,  namely,  the  rule  that  a  bill  in  equity  will  lie  to  recover 
the  possession  of  a  chattel  wherever  a  compensation  in  money 
would  be  an  inadequate  remedy.  That  rule  will  be  considered 
hereafter. 

It  is  obvious  that  contracts  which  consist  in  giving  specified 
things  are  almost  invariably  bilateral ;  and  yet  it  is  commonly  only 
one  of  the  parties  to  the  contract  who  is  to  give  a  specified  thing; 
and  even  if  a  specified  thing  is  to  be  given  by  each  party,  yet  the 
thing  to  be  given  by  one  may  be  of  such  a  nature  as  to  give  a  court 
of  equity  jurisdiction  over  the  contract,  while  the  thing  to  be  given 
by  the  other  is  not.  How,  then,  is  the  question  of  equity  jurisdic- 
tion to  be  dealt  with  in  case  of  a  bilateral  contract,  one  side  of 
which  is  of  such  a  nature  as  to  give  a  court  of  equity  jurisdiction 
over  the  contract,  but  the  other  is  not }  It  must  first  be 
ascertained  whether  the  two  sides  of  the  contract  are  or  are 
not  mutually  dependent  upon  each  other.  If  they  are  not, 
they  are  to  be  regarded,  for  the  purposes  of  the  question  now 
under  consideration,  as  two  separate  unilateral  contracts  ;  for  in 
such  a  case  the  two  sides  of  the  contract  can  never  be  the  subject 
of  any  one  suit  (unless,  indeed,  a  suit  and  a  cross-suit  be  regarded 
as  one  suit),  and  therefore  the  question  whether  equity  has  juris- 
diction over  one  side  of  the  contract  is  always  independent  of  the 
question  whether  it  has  jurisdiction  over  the  other  side  of  the  con- 
tract. It  is  upon  this  ground  that  the  decision  rests  in  the  impor- 
tant case  of  Jones  v.  Newhall;^  for,  though  performance  by  the 
plaintiff  was  there  dependent  upon  performance  by  the  defendant, 
yet  the  converse  was  not  true  ;  on  the  contrary,  performance  by 
the  defendant  was  a  condition  precedent  to  performance  by  the 
plaintiff.  Consequently,  though  the  defendant,  on  paying  or  ten- 
dering the  purchase-money,  could  have  maintained  a  bill  in  equity 
for  a  conveyance  of  the  land,  yet  the  plaintiff  could  not  maintain 
a  bill  to  recover  the  purchase-money,  his  remedy  at  law  being  per- 
fectly adequate  ;  nor  could  he,  it  seems,  even  though  performance 

1  115  Mass.  244. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  5  I 

by  him  had  been  a  condition  precedent  to  performance  by  the 
defendant  ;  for  though  he  could  not  in  that  case  have  recovered 
the  purchase-money  at  law  until  he  had  conveyed  the  land,  even 
though  he  were  prevented  from  conveying  the  land  by  the  defend- 
ant's refusing  to  accept  it,  and  could  only  recover  special  damages 
for  the  breach  of  the  contract  by  the  defendant  by  which  he  was 
prevented  from  conveying  the  land,  yet  it  seems  that  special 
damages  are  always  an  adequate  remedy  for  a  breach  of  contract 
by  a  vendee  which  prevents  performance  by  the  vendor. 

When,  however,  the  two  sides  of  a  bilateral  contract  are  mutu- 
ally dependent  upon  each  other,  as  they  almost  invariably  are  in 
contracts  for  the  sale  of  property,  equity  cannot,  as  we  have  seen, 
enforce  performance  of  one  side  of  the  contract,  unless  it  enforces 
performance  of  the  other  side  also.  Therefore,  if  one  side  of  such 
a  contract  be  of  such  a  nature  that  equity  cannot  enforce  it,  then  it 
cannot  enforce  the  other  side  either.  If,  therefore,  A  and  B  agree 
that  A  shall  serve  B  for  one  year,  and  that  B  shall  convey  to  A  a 
certain  piece  of  land,  and  B  break  the  contract  by  refusing  to  per- 
mit A  to  serve  him,  yet  A  can  have  no  relief  in  equity,  as  equity 
cannot  compel  performance  by  A.  It  is  true  that,  in  this  case, 
the  two  sides  of  the  contract  happen  not  to  be  mutually  dependent, 
because  performance  by  A  is  a  condition  precedent  to  performance 
by  B  ;  and  if  A  could  perform  his  side  of  the  contract  without  the 
cooperation  of  B  {i.  c,  if  B  could  not  prevent  performance  by  A), 
equity  would  enforce  performance  by  B  at  the  suit  of  A  (A  having 
first  performed  on  his  part),  though  it  could  not  compel  perform- 
ance by  A  at  the  suit  of  B.  But,  as  B  can  prevent  performance 
by  A  (/.  e.,  as  A  cannot  perform  without  B's  cooperation),  the  case 
is  the  same  in  respect  to  equity  jurisdiction,  as  if  the  two  sides  of 
the  contract  were  mutually  dependent  upon  each  other.  On  the 
other  hand,  if  both  sides  of  the  contract  be  of  such  a  nature  that 
equity  can  enforce  them,  and  one  side  be  of  such  a  nature  that 
equity  ought  to  enforce  it,  then  equity  will  enforce  both  sides, 
though  the  other  side  consist  merely,  e.  g.,  in  the  payment  of 
money ;  and  this  equity  will  do,  not  only  at  the  suit  of  the  party 
who  is  entitled  to  come  into  equity  from  the  nature  of  the  thing  for 
which  he  has  contracted,  but  at  the  suit  of  the  other  party  as  well. 
Accordingly,  it  has  never  been  doubted  that  a  vendor  of  land  has 
as  much  right  to  enforce  performance  of  the  contract  in  equity  as 
the  vendee.     This  right  of  the  vendor  cannot,  indeed,  be  demon- 


52  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

strated.  Equity  might  have  refused  to  assume  jurisdiction,  except 
at  the  suit  of  the  vendee,  without  committing  any  absurdity,  and 
perhaps  without  doing  any  clear  injustice  to  the  vendor.  Courts 
of  equity  have  preferred,  however,  in  this  as  in  other  cases,  to  ad- 
here to  their  favorite  maxim  that  equality  is  equity. 

Having  thus  seen  in  what  cases  equity  will  assume  jurisdiction 
over  contracts,  it  remains  to  inquire  under  what  circumstances 
equity  will  give  relief  to  a  plaintiff  who  sues  upon  a  contract.  As 
such  a  plaintiff  founds  his  suit  upon  a  legal  right,  the  circumstances 
under  which  he  is  entitled  to  recover  are  generally  the  same  in 
equity  as  at  law,  but  not  always.  It  is  always  in  the  discretion  of 
a  judge  in  equity  whether  he  will  aid  a  legal  right ;  and  hence  he 
may  refuse  relief  to  a  plaintiff  who  sues  upon  a  contract,  though 
the  plaintiff's  right  to  recover  at  law  be  conceded,  and  though 
equity  confessedly  have  jurisdiction  of  the  case.  It  follows,  there- 
fore, that  more  may  be  required  of  a  plaintiff  who  sues  in  equity 
upon  a  contract  than  would  be  required  of  him  at  law  ;  and  more 
is  required  in  fact.  First,  it  is  not  sufficient  in  equity  that  a  con- 
tract be  under  seal,  nor  even  that  it  be  supported  by  a  sufficient 
common-law  consideration  ;  it  must  also  be  supported  by  a  con- 
sideration which  equity  regards  as  sufficient.  Generally  a  consid- 
eration which  is  sufficient  at  law  will  be  sufficient  in  equity  also,  but 
not  always.  For  example,  one  dollar  is  a  sufficient  consideration 
at  law  to  support  a  promise  to  convey  the  largest  estate  ;  but 
equity  would  not  enforce  performance  of  such  a  promise,  even 
though  it  were  under  seal.  So  a  consideration  which  is  sufficient 
in  equity  will  generally  be  sufficient  at  law  also,  but  not  always. 
For  example,  a  desire  to  reconcile  a  father  to  the  marriage  of  his 
son  will  be  a  sufficient  consideration  in  equity  for  a  promise  to  con- 
vey an  estate  to  the  son,  though  it  is  no  consideration  at  law.^  If, 
therefore,  such  a  promise  be  under  seal,  equity  will  enforce  it ; 
but  if  it  be  not  under  seal,  equity  will  not  enforce  it,  because  it  is 
not  valid  at  law.  In  short,  as  by  the  civil  law  an  agreement  must 
have  a  "  cause "  {causa)  in  order  to  create  an  obligation,^  so  in 
equity  it  must  have  a  "  cause  "  in  order  to  be  enforced  in  equity ; 
and  this  "  cause  "  is  not  precisely  the  same  thing  as  our  "  consider- 
ation." 

Secondly,  equity  will  not  enforce  a  contract  if  its   enforcement 

1  Wiseman  v.  Roper,  1  Ch.  Rep.  84. 

*»  See  Pothier,  Trait6  des  Obligations,  §§  42-46. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  53 

will  not  be  conducive  to  justice.  If  it  appear,  therefore,  that  the 
plaintiff  has  overreached  the  defendant,  or  has  taken  advantage 
of  his  ignorance  or  inexperience,  or  has  driven  a  "  hard  bargain  " 
with  him, —  in  short,  if  it  appear  that  he  has  not  exercised  entire 
good  faith  towards  the  defendant  in  obtaining  the  contract,  though 
he  have  been  guilty  of  no  such  fraud  as  would  prevent  his  recov- 
ering at  law,  yet  equity  will  leave  him  to  such  damages  as  a  jury 
will  give  him. 

Thirdly,  equity  considers  it  as  unjust  for  a  defendant  to  be  kept 
in  uncertainty  and  suspense  as  to  whether  he  will  be  required  to 
perform  the  contract  or  not  ;  as  to  whether,  c.  g.,  he  is  to  keep  his 
estate  or  convey  it  to  the  plaintiff.  In  particular,  equity  considers 
it  as  unjust  for  the  plaintiff  to  speculate  at  the  defendant's  ex- 
pense,—  to  sue  at  law  or  in  equity,  according  as  events  happen- 
ing after  the  breach  of  the  contract  render  specific  performance  or 
damages  most  for  his  interest.  If,  therefore,  there  is  satisfactory 
evidence  that  a  plaintiff  is  seeking  specific  performance  only  be- 
cause of  events  which  have  happened  since  the  contract  was 
broken,  the  bill  will  be  dismissed.  And,  even  in  the  absence  of 
any  such  evidence,  a  plaintiff's  bill  will  be  dismissed,  on  the 
ground  of  laches,  unless  it  was  filed  promptly,  and  has  been 
prosecuted  with  diligence.^  The  amount  of  delay  which  will 
constitute  laches  cannot,  indeed,  be  precisely  defined,  as  it  varies 
according  to  circumstances  ;  but  the  only  safe  course  for  a  plain- 
tiff who  desires  specific  performance  is  to  use  as  much  diligence 
as  is  reasonably  practicable. 

The  power  of  a  court  of  equity  to  enforce  specific  perform- 
ance is  oFcourse  limited  by  the  defendant's  ability  to  perform;  nor 
can  a  defendant  be  imprisoned  for  not  performing  a  decree  which 
he  is  unable  to  perform,  as  he  is  guilty  of  no  contempt.  If,  there- 
fore, the  cooperation  of  a  third  person  be  necessary  to  the  per- 
formance of  a  contract,  it  is  a  sufficient  excuse  for  the  defendant 
that  such  third  person  refuses  to  cooperate,  even  though  the  de- 
fendant expressly  bound  himself  to  procure  his  cooperation  ;  and 
this  rule  holds,  even  though  the  third  person  be  the  defendant's 
wife.  Mere  poverty,  however,  is  not  an  inability  which  any  court 
can  recognize  ;  and  therefore  inability  is  never  an  excuse  for  not 
performing  a  decree  for  the  payment  of  money. 

1  If,  however,  a  vendee  of  land  be  in  possession  of  the  land  under  the  contract^  the 
rule  stated  in  the  text  will  not  apply.     Mills  v.  Haywood,  6  Ch.  D.  196,  202. 


54  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

An  inability  in  a  vendor  to  make  a  good  title  is  a  legal  (not  a 
physical)  inability  to  perform  the  contract  ;  and  therefore  it  is  no 
excuse  in  the  mouth  of  the  vendor  for  not  doing  all  the  physical 
acts  necessary  for  the  performance  of  the  contract.  It  is  an  ex- 
cuse, however,  in  the  mouth  of  the  vendee  for  not  performing  the 
contract  on  his  part.  Moreover,  the  court  takes  upon  itself  the 
burden  of  ascertaining  whether  the  vendor  has  such  a  title  as  the 
vendee  is  bound  to  accept  ;  and  that,  too,  whether  the  vendor  or 
the  vendee  be  plaintiff  in  the  suit.  Thus,  if  the  vendor  be  plaintiff, 
he  is  not  required  either  to  allege  or  to  prove  that  his  title  is  good, 
nor  is  the  vendee  required  to  allege  or  prove  the  contrary  ;  but 
the  pleadings  and  proofs  assume  that  the  plaintiff  is  able  to  make 
a  good  title  ;  and,  if  the  questions  raised  by  the  pleadings  and 
proofs  be  decided  in  the  plaintiff's  favor,  a  decree  is  made  that  the 
contract  be  specifically  performed,  provided  the  plaintiff  be  able  to 
make  a  good  title,  and  that  the  cause  be  referred  to  a  Master  to 
ascertain  and  report  whether  a  good  title  can  be  made.  So, 
though  the  vendee  be  the  one  who  seeks  specific  performance,  he 
is  not  regarded  as  submitting  to  perform  on  his  part,  except  upon 
condition  that  he  can  have  a  good  title  ;  and,  therefore,  if  a  de- 
cree be  made  in  his  favor,  it  must  be  in  the  same  form  as  when  the 
vendor  is  plaintiff,  unless  the  vendee  declare  himself  satisfied  with 
the  vendor's  title,  and  waive  any  reference  to  a  Master  in  regard 
to  it.  The  result  is,  therefore,  that  a  reference  as  to  title  is  an  in- 
cident to  every  specific  performance  in  equity  of  a  contract  for 
the  purchase  and  sale  of  land,  unless  such  reference  be  waived  by 
the  vendee. 

If  a  vendor  be  able  to  make  a  good  title  to  a  part  of  the  land 
sold,  but  not  to  the  remainder,  the  vendee  will  be  entitled,  at  his 
option,  to  a  specific  performance  as  to  the  former,  and  to  have  the 
relative  value  of  the  latter  deducted  from  the  purchase-money. 
So  if  the  vendor's  title  be  defective  as  to  the  whole  of  the  land, 
and  the  vendee  elect  notwithstanding  to  have  the  contract  per- 
formed, the  latter  will  be  entitled  to  have  a  deduction  jnade  from 
the  purchase-money  on  account  of  the  defect  of  title,  provided  the 
amount  to  be  deducted  can  be  ascertained  with  reasonable  accu- 
racy. Thus,  if  the  land  be  merely  subject  to  a  pecuniary  encum- 
brance {e.  g.,  an  ordinary  mortgage),  the  vendjee  will  be  entitled  to 
have  the  amount  of  the  encumbrance  deducted  from  the  purchase- 
money,  he  indemnifying  the  vendor  against  the  encumbrance.     So 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  55 

if  a  vendor,  who  has  contracted  to  convey  the  fee-simple,  have 
only  an  estate  for  life  or  lives,  or  for  years,  the  amount  which 
ought  to  be  deducted  from  the  purchase-money,  on  account  of  the 
defect  of  title,  can  be  ascertained  without  difficulty.  But  where  the 
defect  in  the  vendor's  title  is  of  such  a  nature  that  there  are  no 
definite  data  by  which  to  estimate  the  amount  that  ought  to  be 
deducted  from  the  purchase-money  on  account  of  it,  the  vendee 
will  not  be  entitled  to  sj)ecific  performance,  except  upon  the  terms 
of  paying  the  full  amount  of  the  purchase-money.^ 

A  vendor  may  be  unable  fully  to  perform  his  contract  in  conse- 
quence of  something  that  has  happened  to  the  property  since  the 
making  of  the  contract,  as  where  the  subject  of  sale  is  land  and 
buildings,  and,  after  the  making  of  the  contract,  the  buildings  are 
destroyed  by  fire.  In  such  a  case  the  vendee  will  be  entitled,  at 
his  option,  to  have  a  conveyance  of  the  land,  with  a  deduction 
from  the  purchase-money  of  the  relative  value  of  the  buildings. 

Are  there  any  cases  in  which  a  plaintiff,  who  cannot  recover  on 
a  contract  at  law,  can  nevertheless  have  a  specific  performance  in 
equity }  To  say  that  there  are  such  cases  would  seem  at  first 
sight  to  be  equivalent  to  saying  that  a  plaintiff  who  has  no  legal 
right  may  sometimes  recover  in  equity  upon  the  ground  that  he 
has  a  legal  right.  The  law  may,  however,  refuse  to  recognize  a 
right,  because,  if  a  right  were  recognized,  the  law  would  have  no 
adequate  means  of  enforcing  it,  or  no  means  of  enforcing  it  with- 
out giving  the  plaintiff  more  than  he  would  be  entitled  to,  and 
thus  doing  injustice  to  the  defendant ;  and,  in  such  a  case,  if  the 
reason  wh)'  the  law  refuses  to  recognize  the  right  does  not  exist  in 
equity,  the  right  maybe  recognized  in  equity  without  any  violation 
of  law,  though  in  strictness  the  right  will  then  be  equitable,  —  not 
legal.  At  all  events,  there  is  an  important  class  of  cases  .in  which 
equity,  rightly  or  wrongly,  gives  relief  to  the  party  in  whom  the 
legal  right  created  by  the  contract  is  vested,  though,  confessedly, 
such  party  could  not  recover  in  an  action  at  law.  The  cases  re- 
ferred to  are  those  in  which,  the  contract  being  bilateral,  the 
covenant  or  promise  of  the  defendant  is  subject  to  the  implied 
condition  that  the  plaintiff's  covenant  or  promise  shall  be  per- 
formed either  before  the  defendant's  or  concurrently  with  it.  If 
the  condition  be  express,  and  the  plaintiff  break  his  covenant  or 
promise  (i.  c,  break  the  condition  on  which  the  defendant's  cove- 

*  See  infra,  page  58. 


55  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

nant  or  promise  depends)  in  ever  so  slight  a  degree,  he  can  never 
recover  against  the   defendant,  either  at  law  or  in  equity.     The 
reason  is  obvious,  namely,  that   by  the  terms  of  the   contract  no 
performance  is  due  to  the  plaintiff.     And  the  rule  at  law  is  the 
same,  though  the  condition  be  implied,  so  long  as  no  part  of  the 
contract  has  been  performed.     But  if  the  plaintiff  have  performed 
his  covenant  or  promise  in  part  before  committing  any  breach  of 
it,  the  implied  condition  is  then  modified,  and  only  requires  the 
plaintiff  to  perform  his  covenant  or  promise  so  far  as  is  essential 
to  its  main  scope  and  object  ;  and  the  only  effect  of  a  breach  by 
the  plaintiff  in  points  not  essential  will  be  (not  to  disable  the  plain- 
tiff from  enforcing  the  defendant's  covenant  or  promise,  but)  to 
enable  the  defendant  to  recover  damages  against  the  plaintiff  for 
the  breach.     In  equity,  on  the  other  hand,  a  breach  by  the  plain- 
tiff of  his  own  covenant  or  promise,  if  it  be  only  in  points  not 
essential,  will  not  disable  the  plaintiff  from  enforcing  the  defend- 
ant's covenant  or  promise,  even  though  no  part  of  the  plaintiff's 
covenant  or  promise  have  been  performed,  unless  performance  by 
the  plaintiff  be  made  by  the  contract  an  express  condition  of  per- 
formance   by  the   defendant.     In  justification  of   this  difference 
between  law  and  equity,  it  may  be  said  that  when  a  plaintiff,  who 
has  broken  his  own  covenant  or  promise,  is  permitted  to  enforce  at 
law  the  covenant  or  promise  in  his  favor,  no  allowance  can  be  made 
to  the  defendant  for  the  plaintiff's  breach,  but  the  plaintiff   will 
recover  as  ff  he  had  fully  performed  on  his  part,  and  the  defendant 
must  indemnify  himself  by  suing  the  plaintiff  in  turn.     In  equity, 
on    the    other   hand,  the    compensation    in  money  to  which    the 
defendant    is   entitled   for   the    plaintiff's   breach    will    be   ascer- 
tained in  the  plaintiff's  suit,  and  will  be  deducted  from  the  amount 
to  be  paid  by  the  defendant,  or  added  to  the  amount  to  be  paid 
by  the  plaintiff  (as  the  case  may  be);  and  this,  too  (on  the  principle 
already  explained),  without  the  necessity  of  the  defendant's  filing 
any  cross-bill.     If  this  difference  in  procedure  were  the  only  reason 
why  the  common  law  has  a  different  rule  from  that  which  prevails 
in   equity,  the  justification  of  equity  would  be  complete;  but   it 
may  be  alleged   in  support  of  the   common-law  rule   (with  what 
force  the  writer  will  not  presume  to  say)  that  courts  are  just  as 
much  bound  by  an  implied  condition  as  they  are  by  an  express 
condition,  unless   some  event  has   happened  since  the  making  of 
the  contract  which  introduces  a  new  element  into  the  case. 


A    BRIEF  SURVEY  OF  ECJC'ITV  JURISDICTIOX.  5/ 

The  rule  in  equity  being,  however,  as  stated  above,  it  often  hap- 
pens that  bills  for  specific  performance  arc  filed  by  parties  who 
have  themselves  broken  the  contracts  on  which  they  sue  ;  and  as 
often  as  this  is  the  case  the  question  arises  whether  the  plaintiff's 
breach  goes  to  the  essence  or  not.  In  case  of  an  obligation  merely 
to  pay  money,  a  breach  can  never  go  to  the  essence,  as  interest  on 
the  money  is  always,  in  legal  contemplation,  full  compensation  for 
the  breach.  Therefore,  a  purchaser  of  land  can  never  lose  the 
right  to  specific  performance  by  a  mere  breach  of  the  contract, 
though  he  may  easily  lose  it  by  delay  or  laches.  In  case  of  an 
obligation  to  give  a  specified  thing,  a  breach  by  the  plaintiff  may- 
consist  either  in  a  failure  to  give  the  thing  on  the  day  when  by  the 
contract  it  is  due,  or  in  a  failure  to  give  some  portion  of  it  at  all, 
or  to  give  it  in  the  condition  in  which  it  was  agreed  to  be  given. 
A  breach  of  the  first  kind  is  a  breach  in  time  merely,  and  generally 
such  a  breach  does  not  go  to  the  essence.  For  example,  it  is  not 
presumably  of  vital  importance  to  the  purchaser  of  an  estate 
whether  he  get  the  estate  to-day  or  to-morrow,  or  even  whether  he 
get  it  this  year  or  next.  It  is  always  open,  however,  to  a  purchaser 
to  show  that  he  purchased  the  estate  with  a  particular  object  in 
view,  which  object  was  known  to  the  seller,  and  that  that  object 
has  been  defeated  by  the  seller's  delay  in  performing  the  contract ; 
and  then  the  seller's  breach  will  go  to  the  essence.  So  time  may, 
it  seems,  be  of  the  essence  of  a  contract  for  the  purchase  and  sale 
of  property  from  the  nature  of  the  property,  e.g.,  where  the  property 
is  constantly  diminishing  in  value,  as  a  life  interest,  or  constantly 
increasing  in  value,  as  a  reversionary  interest.  So  if  a  contract 
contain  an  express  declaration  that  time  shall  be  of  its  essence, 
such  declaration  will  be  binding  upon  the  court  ;  for  the  only 
ground  upon  which  a  court  can  hold  that  any  given  breach  does 
not  go  to  the  essence  (or  rather,  perhaps,  that  any  given  breach  of 
an  implied  condition  by  the  plaintiff  does  not  disable  him  from 
enforcing  the  contract  against  the  defendant)  is  the  intention  of  the 
parties,  actual  or  presumed.  Such  a  declaration  has,  therefore, 
the  same  effect  as  that  of  making  the  performance  of  the  contract 
by  each  party  expressly  conditional  upon  its  performance  by  the 
other  party. 

It  is  often  said  that  time  is  not  of  the  essence  of  a  contract  in 
equity,  as  if  equity  differed  from  law  in  that  respect  ;  but  that  is 
a  mistake.     Whatever  is  of  the  essence  of  a  contract   at  law  is 


58  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

of  its  essence  in  equity  also.  It  would  be  strange  if  it  were  not 
so,  since  the  question  is  entirely  one  of  construction,  and  the  con- 
struction of  a  contract  ought  to  be  the  same  in  all  courts.  The 
real  difference  between  equity  and  law  is  the  one  already  adverted 
to;  namely,  that  at  law  it  is  not  material  whether  a  breach  goes  to 
the  essence  or  not,  unless  there  has  been  part-performance. 

If  a  breach  of  an  obligation  to  give  a  specified  thing  consist  in 
a  failure  to  give  some  portion  of  the  thing  at  all,  or  to  give  it  in 
the  condition  in  which  it  was  agreed  to  be  given,  there  is  no  pre- 
sumption that  the  breach  does  or  does  not  go  to  the  essence  ;  but 
it  seems  that  the  defendant  will  always  have  to  satisfy  the  court 
that  the  breach  does  go  to  the  essence,  in  order  to  protect  him- 
self against  specific  performance.  The  question  is  always  referred 
to  a  Master.  The  most  common  case  is  where  the  plaintiff,  a  ven- 
dor of  land,  is  unable  to  perform  the  contract  as  to  part  of  the 
land  for  want  of  title ;  and  in  that  case  the  Master  is  directed  to 
inquire  whether  the  part  of  the  land  to  which  the  plaintiff  has  no 
title  is  "material"  to  the  enjoyment  of  the  residue. 

If  a  vendor  of  land  be  unable  fully  to  perform  his  contract, 
not  because  his  title  fails  as  to  a  part  of  the  land,  but  because  there 
is  a  flaw  in  his  title  which  extends  to  all  the  land,  the  breach  will 
always  go  to  the  essence,  however  small  the  flaw  may  be,  unless,  in- 
deed, it  be  so  small  as  not  to  be  a  flaw  at  all  in  legal  contempla- 
tion. In  other  words,  a  purchaser  of  land  will  never  be  compelled 
to  accept  a  defective  title,  with  a  compensation  in  money  for  the 
defectiveness  of  the  title.  The  reason  seems  to  be  that  it  is  im- 
possible to  measure  a  flaw  in  a  title  by  a  money  standard. ^ 

If  A  and  B  make  an  agreement  with  each  other  for  the  purchase 
and  sale  of  land,  and  A  commit  a  breach  of  the  agreement  by 
failing  to  perform  at  the  time  agreed  upon,  B  will  be  entitled  at 
law  to  rescind  the  contract  ;  and  he  will  be  entitled  to  rescind  it  in 
equity  also,  unless  A  have  a  right  to  specific  performance  on  the 
ground  that  the  breach  committed  by  him  did  not  go  to  the 
essence.  B,  therefore,  immediately  upon  his  committing  a  breach, 
may  file  a  bill  to  have  the  contract  rescinded  ;  and  A  can  resist  a 
decree  for  rescission  only  by  obtaining  a  decree  for  specific  per- 
formance ;  and,  in  order  to  obtain  such  a  decree,  he  should  file  a 
cross-bill. 

If  a  contract  be  made  for  the  purchase  and  sale  of  land  which 

1  See  supra,  page  55. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  59 

has  buildings  on  it,  and,  after  the  making  of  the  contract,  but 
before  the  conveyance  of  the  land,  the  buildings  be  casually  de- 
stroyed by  fire,  upon  whom  will  the  loss  fall  ?  At  law  it  will 
clearly  fall  upon  the  vendor  in  all  cases.  The  buildings  belong  to 
the  vendor,  and  res  pcrit  sno  domino.  If  the  loss  happen  before 
the  time  fixed  for  completing  the  purchase  has  arrived,  the  vendor 
will  be  unable  to  perform  the  contract  on  his  part,  and,  therefore, 
he  can  never  enforce  it  against  the  vendee.  The  vendee  will  not, 
indeed,  be  able  to  enforce  the  contract  against  the  vendor  either, 
because  the  act  of  God  will  excuse  the  latter  from  performing  his 
contract  qua  contract,  though  it  cannot  relieve  him  from  the  con- 
sequences of  failing  to  perform  it  qua  condition.  The  contract, 
therefore,  will  never  be  performed,  nor  will  any  liability  be  incurred 
for  not  performing  it.  Each  of  the  parties  to  the  contract  will, 
therefore,  be  in  the  same  situation  as  if  the  contract  had  never 
been  made.  If,  on  the  other  hand,  the  loss  happen  after  the  time 
fixed  for  completing  the  purchase  is  past,  it  will  equally  follow 
that  the  contract  will  never  be  performed,  for  it  will  have  been 
broken  by  either  the  vendor  or  the  vendee,  or  by  both.  If  broken 
by  the  vendor,  his  liability  ifi  damages  will  not  be  reduced  by  the 
loss  ;  if  broken  by  the  vendee,  the  vendor's  right  to  damages  will 
not  be  enlarged  by  the  loss  ;  if  broken  by  both  parties,  of  course 
neither  will  be  able  to  recover  against  the  other,  and  it  will  be  as 
if  the  contract  had  never  been  made,  or  as  if  it  had  been  rescinded 
by  mutual  consent. 

What  is  the  rule  in  equity  in  such  a  case  }  Clearly  it  ought  to 
be  the  same  as  at  law,  if  the  loss  happen  before  the  time  fixed  for 
completing  the  purchase  has  arrived ;  for  in  that  case  the  conse- 
quences of  the  loss  will  be  the  same  in  equity  as  at  law,  namely, 
that  the  vendor  will  be  unable  to  perform  the  contract  on  his  part. 
It  is  true  that  equity  may  enforce  the  contract  against  the  vendee, 
notwithstanding  the  destruction  of  the  buildings ;  but  if  it  does,  it 
must  do  so  because  the  breach  of  condition  by  the  vendor  did  not 
go  to  the  essence  of  the  contract,  and  hence  the  performance  by 
the  vendee  must  be  with  compensation  for  the  loss  of  the  build- 
ings, i.  e.,  the  value  of  the  buildings  must  be  deducted  from  the 
purchase-money  to  be  paid  by  the  vendee.  If,  on  the  other  hand, 
the  fire  happen  after  the  time  fixed  for  completing  the  purchase  is 
past,  the  loss  will  in  equity  fall  upon  the  vendee ;  i.e.,  the  vendor 
will  be  able  to  throw  the   loss  upon  the  vendee   by   enforcing 


6o  A    Ei.jEF  SURVEY  OF  EQUITY  JURISDICTION. 

specific  performance  of  the  contract  in  equity,  assuming,  of  course, 
that  he  is  in  a  condition  to  enforce  such  performance.  The  reason 
of  this  is  that,  when  performance  of  a  contract  is  enforced  in 
equity,  the  performance  is  held  to  relate  back  to  the  time  fixed  by 
the  contract  for  its  performance  ;  and  hence,  if  performance  be  en- 
forced in  the  case  supposed,  equity  will  regard  the  land  as  having 
belonged  to  the  vendee  when  the  loss  happened. 

Such  is  the  rule  which  o_ught  to  prevail  in  equity,  and  which 
formerly  did  prevail  ;  ^  but,  since  the  time  of  Lord  Eldon,  English 
courts  of  equty  have  drifted  into  great  confusion  upon  this  subject, 
for  they  now  hold^  that  a  loss  by  fire  which  happens  any   time 

1  "  If  I  should  buy  an  house,  and,  before  such  time  as  by  the  articles  I  am  to  pay  for 
the  same,  the  house  be  burnt  down  by  casualty  of  fire,  I  shall  not,  in  equity,  be  bound  to 
pay  for  the  house."  Per  Sir  Joseph  Jekyll,  M.  R.,  in  Stent  v.  Bailis,  2  P.  Wms.  217, 
220.  The  same  rule  was  acted  upon  by  Lord  Eldon  in  Paine  v.  Meller,  6  Ves.  349.  It 
is  true  that  the  purchase  there  was  to  be  completed  on  the  29th  of  September,  while  the 
fire  did  not  happen  till  the  i8th  of  December  following;  but  the  time  for  completing  the 
purchase  had  been  extended  by  the  mutual  consent  of  the  parties;  and  Lord  Eldon  held 
that  the  vendee  must  bear  the  loss,  provided  he  had  been  put  in  default  by  the  vendor 
before  the  loss  happened,  but  not  otherwise. 

2  Poole  V.  Adams,  12  \V.  R.  683;  Rayner  v.  Preston,  14  Ch.  D.  297,  18  Ch.  D.  i.  In 
the  first  of  these  cases,  Kindersley,  V.  C,  seems  to  have  supposed  that  he  was  following 
the  common-law  rule;  for  he  said  it  was  "  clear  that  the  contract  remained  good  at  hw 
[/.  e.,  notwithstanding  aloss  V)y  fire  before  the  time  for  performing  the  contract  arrived], 
and  that  the  purchaser  might  have  been  sued  for  breach,  in  refusing  to  complete  and  pay 
his  purchase-money."  It  seems  impossible  to  reconcile  either  of  the  two  cases  just  cited 
•with  that  of  Counter  v.  Macpherson,  5  Moo.  P.  C.  83.  In  the  latter  case,  there  was  an 
agreement  for  a  lease  of  land  and  buildings  by  the  plaintiff  to  the  defendants.  Before  the 
lease  was  made,  the  buildings  were  partly  destroyed  by  fire.  The  fire  happened  after  the 
day  fixed  for  performing  the  agreement,  i.  e.,  for  making  the  lease,  but  the  time  had  been 
extended  by  mutual  consent  (as  in  Paine  v.  Meller,  supra),  and  at  the  time  of  the  fire 
there  had  been  no  breach  of  the  contract  by  either  party ;  and  the  court  held  that  the  plain- 
tiff was  entitled  to  specific  performance  only  upon  the  terms  of  restoring  the  buildings  to 
the  condition  in  which  they  were  before  the  fire,  and  in  other  respects  performing  the  con- 
tract on  his  part.  Hence  it  was  held  that  the  loss  fell  upon  the  plaintiff  as  well  in  equity, 
as  at  law;  and  the  court  declared  that  upon  such  a  question  equity  had  no  rule  of  its  own, 
but  followed  the  law.  It  is  true  that  the  defendant's  obligation  to  perform  was  conditional 
on  performance  by  the  plaintiff,  but  so  it  was  in  all  the  cases  in  which  this  question  has 
arisen.  In  all  of  them  alike,  too,  the  condition  was  implied,—  not  express.  This  was 
emphatically  the  case  in  Counter  v.  Macpherson,  as  there  was  there  no  formal  writing  what- 
ever, the  agreement  having  been  made  out  entirely  by  letters  written  by  the  parties  respec- 
tively to  each  other. 

It  is  also  true  that  the  agreement  in  Counter  v.  Macpherson  contained  a  condition 
precedent,  to  be  performed  by  the  plaintiff;  but,  in  respect  to  the  question  under  consid- 
eration, there  is  no  difference  between  a  condition  precedent  and  a  concurrent  condition. 
Moreover,  every  vendor  of  land  has  a  condition  precedent  to  perform,  according  to  the 
English  practice,  namely,  that  of  showing  a  good  title. 

Finally,  it  is  true  that  one  of  the  conditions  to  be  performed  by  the  plaintiff  in  Counter 


A    BRIEF  SURVEY  OF  EOUITY  "JURlSDn   /  /OX.  6 1 

after  the  makiri^oi  the  contract  falls  upon  the  vendee,  thus  holding 
in  effect  that  the  performance  of  a  contract  enforced  in  equity 
relates  back  to  the  time  of  making  the  contract.  Such  a  doctrine 
appears  sufTicicntly  extraordinary  without  adverting  to  its  conse- 
quences. When  an  act  done  at  one  time  relates  to  a  different 
lime,  the  relation  is,  of  course,  a  legal  fiction  ;  and  the  only  justifi- 
cation for  the  adoption  of  a  legal  fiction  is  that  thereby  more 
perfect  justice  can  be  done.  In  regard  to  the  performance  of  a 
contract,  the  perfection  of  justice  consists  in  its  being  performed  at 
the  time  fixed  in  the  contract  for  its  performance;  and  therefore 
the  reason  is  obvious  why  a  performance  enforced  in  equity  should 
relate  to  that  time  ;  but  what  possible  reason  can  exist  for  making 
such  a  performance  relate  to  the  time  of  making  the  contract,  i.  e., 
to  a  time  when  neither  party  was  bound  either  to  perform  or  to 
accept  performance  }  Such  a  relation  is,  in  its  consequences, 
much  worse  than  no  relation  at  all  ;  for  the  worst  consequence  of 
the  latter  would  be  that  the  law  would  not  succeed  in  doing  perfect 
justice,  while  the  consequence  of  the  former  may  be  that  the  law  (lj^,.,^,Ji^ 
will  inflict  the  greatest  injustice.  For  example,  what  greater  inj  us- 
tice  could  be  inflicted  than  by  shifting  the  consequences  of  an  act 
of  God  from  A,  upon  whom  it  has  fallen,  to  B,  upon  whom  it  did 
not  fall,  — who  was  confessedly  in  no  way  responsible  for  the  act, 
and  who  has  done  no  wrong  whatever  to  A,  whether  by  commit- 
ting a  tort  or  by  breaking  an  obligation  >  Moreover,  the  English 
courts  do  not  carry  out  their  doctrine  to  all  its  legitimate  conse- 
quences. For  example,  to  be  consistent,  they  ought  to  require  a 
vendor  to  account  to  the  vendee  for  the  rents  and  profits  of  the  land 
from  the  time  of  making  the  contract,  and  they  ought  to  require 
the  vendee  to  pay  interest  on  the  purchase-money  from  the  same 
time  ;  and  yet  the  time  from  which  they  actually  require  both  is 


V.  Macpherson  was  of  a  kind  not  often  found  except  in  agreements  for  leases,  namely, 
the  repairing  of  the  existing  buildings  and  the  erection  of  a  new  building;  but  that  intro- 
duced no  new  element  into  the  case.  Had  there  not  been  such  a  condition,  there  would 
have  been  another,  namely,  that  of  leasing  the  property  in  the  condition  that  it  was  in  at 
the  date  of  the  agreement ;  and  the  effect  of  damage  by  fire  upon  each  of  these  conditions 
is  the  same,  namely,  that  of  making  it  impossible  for  the  owner  to  perform  the  condition 
without  repairing  the  damage  caused  by  the  fire. 

Upon  the  whole,  there  appears  to  have  been  but  one  material  distinction  (though  that 
was  a  decisive  one)  between  Counter  v.  Macpherson  and  Paine  v.  Meller;  namely,  that  in 
the  latter  the  plaintiff  had  apparently  performed  upon  his  part,  and  the  defendant  was  in 
default,  while  in  the  former  the  plaintiff  had  not  fully  performed  on  his  part,  and  so,  of 
course,  the  defendant  was  not  in  default. 


62  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  time  fixed  for  the  performance  of  the  contract.  It  is  not 
difficult  to  understard  why  they  have  not  gone  wrong  upon  these 
latter  points.  To  require  a  vendee  to  pay  interest  on  the  purchase 
money  before  the  principal  is  due,  would  be  too  palpable  a  dis- 
regard of  the  terms  of  the  contract ;  and  of  course  it  would  not  do 
to  require  the  vendor  to  account  ^or  the  rents  and  profits  of  the 
land,  unless  he  is  to  receive  interest  on  the  purchase-money. 
Moreover,  the  computing  of  interest  on  purchase-money  and  the 
taking  of  accounts  of  rents  and  profits  of  lands  are  matters  of  daily 
experience  in  cases  of  specific  performance,  as  to  which  the  prac- 
tice has  never  changed,  and  as  to  which  the  established  forms  of 
decrees  have  prevented  the  courts  from  going  astray.  But  what 
has  blinded  the  courts  to  the  obvious  fact  that,  in  cases  of  specific 
performance,  the  time  from  which  interest  is  to  be  computed,  and 
the  rents  and  profits  accounted  for,  is  the  time  to  which  the  per- 
formance relates  .?  ^  One  answer  to  this  question  may  be  found  in  the 
notion  which  has  extensively  prevailed,  that  a  contract  to  convey 
land  is  in  equity  an  actual  conveyance  ;  that  there  is  in  equity  no  dif- 
ference between  an  actual  conveyance  and  a  contract  to  convey.^ 

1  "  If  in  equity  these  premises  belonged  to  the  vendee,  he  would  have  a  title  to  the  rents 
and  profits  at  Michaelmas  by  relation;  and  he  must  pay  the  purchase-money  with  interest 
from  that  time."     Per  Lord  Eldon,  in  Paine  v.  Meller,  6  Ves.  349,  352. 

2  The  obstinacy  of  this  error  is  strikingly  illustrated  by  the  case  of  Hughes  v.  Morris, 
2  De  G.,  M.&  G.,  349,  where  it  was  decided  that  a  purchaser  of  shares  in  a  British  vessel 
could  not  have  specific  performance  of  the  agreement  for  the  purchase  and  sale,  because 
such  agreement  did  not  conform  to  the  requirements  of  the  Registry  Act  respecting  the 
actual  transfers  of  vessels,  the  court  holding  that  specific  performance  would  make  the 
purchaser  a  part-owner  of  the  vessel  in  equity  from  the  date  of  the  agreement,  and  thus 
violate  the  provisions  of  the  statute.  Knight-Bruce,  L.J.,  said  (p.  355)  :  "  What  the  legis- 
lature had  in  view  was  not  merely  the  passing  or  not  passing  of  what  we  call  the  legal 
estate,  but  that  whenever  property  in  a  vessel  should  be  changed,  it  should  be  changed  in 
a  particular  way.  Now,  whether  there  is  a  sale,  or  a  contract  for  a  sale,  can  make  no 
difference.  A  contract  for  a  sale  is,  in  the  view  of  a  court  of  equity,  a  sale;  whether  an 
actual  transfer  is  made  is  of  no  consequence,  if  a  transfer  is  agreed  to  be  made,  because 
that  which  is  agreed  to  be  done  is,  in  the  view  of  a  court  of  equity,  for  many  purposes^ 
held  to  be  done."  Lord  Cranworth,  L.J.,  also  said  (p.  358)  :  "The  provision  of  the  act 
being  that  a  transfer  shall  not  be  valid  for  any  purpose  whatsoever,  the  argument  is  that  a 
contract,  although  not  valid  to  transfer  the  property,  may  make  a  party  to  it  the  owner  in 
equity.  That  would  be  to  get  rid  of  the  whole  policy  of  the  statute,  namely,  that  there 
should  be  the  means  of  tracing  from  the  original  grand  bill  of  sale  the  ownership  for 
all  time.  But  if  the  doctrine  be  right  that  is  contended  for,  this  need  not  appear  in  any 
document  from  the  very  first  sale."  It  will  be  seen,  therefore,  that  the  view  of  the  court 
was  that  to  allow  specific  performance  of  agreements  for  the  purchase  and  sale  of  British 
vrssels  would  be  to  enable  owners  of  such  vessels  to  nullify  the  Registry  Act  by  separat- 
ing the  beneficial  from  the  legal  ownership,  just  as  owners  of  land  formerly  nullified  the 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  63 

But  how  did  such  a  notion  ever  become  prevalent  ?  It  derives  no 
countenance  from  anything  that  is  actually  done  in  suits  for 
specific  performance ;  and  yet  it  is  only  in  suits  for  specific 
performance  that  it  can  ever  be  maintained  that  the  ownership  of 
land  has  been  changed  in  equity  by  a  mere  agreement  to  change 
it.  Perhaps  the  notion  originated  partly  in  a  mere  misunderstand- 
ing of  the  rule  that  a  performance  of  a  contract  enforced  in  equity 
relates  back  to  the  time  when  it  ought  to  have  been  performed ; 
for  it  has  been  common  to  express  that  rule  by  saying  that  what- 
ever is  agreed  to  be  done  is  considered  by  equity  as  done.  It  is 
believed,  however,  that  the  notion  had  its  chief  source  in  the  doc- 
trine of  equitable  conversion,  i.e.,  in  the  doctrine  that  land  will 
sometimes  be  regarded  by  equity  as  converted  into  money  and 
money  into  land,  though  no  conversion  have  in  truth  taken  place. 
This  doctrine  has  been  adopted  for  the  purpose  of  giving  effect  to 
the  intentions  of  the  owners  of  property  in  regard  to  the  destina- 
tion of  their  property  after  their  deaths.  Thus,  if  a  testator  by 
his  will  direct  a  certain  piece  of  land  to  be  sold  after  his  death, 

law  relating  to  the  legal  ownership  of  land  by  separating  the  use  of  the  land  from  the 
land  itself.  And  if  it  be  true  that  an  agreement  to  convey  is,  in  equity,  an  actual  convey- 
ance, the  view  of  the  court  was  right.  It  is  certain,  however,  that  a  mere  agreement 
to  convey  is  very  far  from  being,  in  equity,  an  actual  conveyance.  It  is  only  by  specific 
performance  that  equity  ever  converts  an  agreement  to  convey  into  an  actual  conveyance. 
By  specitk  performance,  however,  equity  converts  an  agreement  to  convey  into  an  actual 
conveyance  at  law  as  well  as  in  equity.  IIow,  then,  can  specific  performance  impart  to 
an  agreement  to  convey  any  further  effect  or  operation  in  equity  than  it  has  at  law  ?  Only 
by  making  the  performance  of  it  relate  back.  Even,  therefore,  if  equity  made  every 
performance  (whether  compulsory  or  voluntary)  of  an  agreement  to  convey  relate  back 
to  the  date  of  the  agreement,  it  would  by  no  means  follow  that  an  agreement  to  convey 
would,  in  equity,  bean  actual  conveyance.  The  operation  of  such  an  agreement  in  equity 
would  still  be  wholly  dependent  upon  its  operation  at  law,  i.^.,  it  could  never  operate  in 
equity  unless  and  until  it  operated  at  law.  Since,  then,  it  is  only  such  conveyances  as 
are  actually  enforced  in  equity  that  relate  back,  and  since,  of  all  the  conveyances  that 
are  made  (even  of  land),  not  one  in  a  mdlion  is  enforced  in  equity,  the  statement  that 
an  agreement  to  convey  is  in  equity  an  actual  conveyance  seems  extraordinary. 

If  it  be  said  that  the  actual  decision  in  H ugh est^.  Morris  does  not  involve  the  proposi- 
tion that  an  agreement  to  convey  is  in  equity  an  actual  conveyance,  and  that  the  decision 
may  be  supported  upon  the  ground  that  the  agreement  there  in  question,  if  it  had  been 
enforced,  would  have  become  by  relation  a  conveyance  in  equity  from  the  date  of  the 
agreement,  or  at  least  from  the  time  fixed  for  the  performance  of  the  agreement,  and 
would  thus  have  violated  the  statute,  the  answer  is,  that  such  a  relation,  as  it  is  a  mere 
fiction,  created  by  equity  for  the  purposes  of  justice,  is  entirely  within  the  control 
of  equity;  that  such  a  relation,  though  a  usual  incident  of  a  conveyance  enforced 
in  equity,  is  by  no  means  a  necessary  incident  of  such  a  conveyance;  that  whenever, 
therefore,  such  a  relation  would  work  injustice  or  violate  a  statute,  it  should  be  disal- 
lowed; in  short,  that  if  such  a  relation  was  the  only  objection  to  specific  performance 


64  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

but  make  no  disposition  of  either  the  land  or  its  proceeds,  though 
the  land  will  at  law  descend  to  the  testator's  heir,  yet  the  executor 
will  in  equity  be  entitled  to  have  it  sold,  and,  when  sold,  the  pur- 
chase-money will  in  equity  be  part  of  the  personal  estate.  And 
even  though  the  testator,  in  the  case  supposed,  devise  "  all  his 


of  the  agreement  in  question,  the  consequence  was,  not  that  specihc  performance  should 
be  refused,  but  that  specific  performance  pure  and  simple  should  be  granted,  i.  ^.,  specific 
performance  without  any  relation  back.  Such,  it  seems,  should  have  been  the  decision  ;  for 
as  the  statute  prohibited  any  transfer  of  ownership  in  a  British  vessel,  whether  at  law  or 
in  equity,  except  in  the  mode  prescribed,  it  followed  that  the  contract  in  question  could 
not  create  any  equitable  ownership  in  the  vessel  (McCalmont  v.  Rankin,  2  De  G.,  M.  &  G. 
403;  Coombes  v.  Mansfield,  3  Dr.  193;  Liverpool  Borough  Bank  v.  Turner,  1  J.  & 
H.  159,  2  De  G.,  F.  &  J.  502);  but  if,  as  the  court  assumed,  the  contract  created  a 
legal  right,  it  was  no  more  a  violation  of  the  statute  to  enforce  that  right  in  equity  by 
giving  specific  reparation  than  to  enforce  it  at  law  by  giving  damages. 

Upon  the  whole,  it  seems  that  the  court,  in  dismissing  the  bill,  did  proceed  upon  the 
idea  that  an  agreement  to  convey  is  in  equity  an  actual  conveyance;  that  the  conse- 
quence of  enforcing  the  agreement  in  question  would  be  to  make  it  an  actual  conveyance 
in  equity  from  its  date,  and  that,  too,  not  by  relation,  but  independently  of  relation;  that 
the  operation  of  a  contract  as  a  conveyance  in  equity  was  not  a  consequence  of  specific 
performance,  but  that  the  latter  was  a  consequence  of  the  former;  that  the  question, 
therefore  which  the  court  had  to  decide  was  not  whether  equitable  relief  should  be 
given  for  the  violation  of  a  legal  right,  but  whether  the  agreement  could,  without  a 
violation  of  the  statute,  create  an  equitable  right  in  the  plaintiff,  and  impose  an  equita- 
ble obligation  upon  the  defendant,  i.  e.,  create  between  the  plaintiff  and  the  defendant 
the  relation  of  trustee  and  cestui  que  trust. 

It  would  seem  to  be  a  sufficient  answer  to  such  a  view  to  say  that,  if  it  be  well 
founded,  a  vendee  of  land  has  no  occasion  to  file  a  bill  for  specific  performance, 
promptly  or  otherwise;  that  he  may  always  base  his  right  to  go  into  equity  upon  his 
character  of  cestui  que  trust;  that,  instead  of  filing  a  bill  for  specific  performance,  he 
may  e.g.,  file  a  bill  for  an  account.  Indeed,  a  bill  for  an  account  would  possess  at 
least  one  signal  advantage  over  a  bill  for  specific  performance,  namely,  that  it  would  re- 
quire no  performance  by  the  plaintiff,  i.  e.,  that  the  plaintiffs  right  to  an  account  would 
not  be  at  all  affected  by  the  fact  that  he  had  not  paid  the  purchase- money. 

There  is  however  a  difference  in  respect  to  the  question  under  discussion,  between 

such  agreements  and  a  unilateral  agreement  to  convey  property.     It  seems  that  an 

agreement  of  the  latter  kind,  i.e.,  an  agreement  to  convey  property  already  paid  for 

(see  Rayner  v.  Preston,  14  Ch.  D.  297,  18  Ch.  D.  i),  would  have  the  effect  of  changing 

,i  the  equitable  ownership  of  the  property  immediately,  by  making  the  vendor  a  trustee 

\  for  the  vendee ;  and,  therefore,  any  subsequent  injury  to  the  property  by  the  act  of  God 

'  would  fall  upon  the  vendee.     The  latter  has  parted  with  his  money,  and  he  has  acquired 

nothing  in  exchange  for  it  but  a  right  to  a  conveyance  of  the  property.     If  the  vendor 

be  ready  and  willing  to  execute  such  conveyance  in  proper  form,  that  is  all  that  the 

vendee  can  require  of  him;  and  the  fact  that,  since  the  payment  of  the  money  and  the 

making  of  the  agreement,  the  property  has  been  injured  by  the  act  of  God  will  not 

enable  the  vendee  either  to  recover  back  his  money,  or  to  recover  damages  for  a  breach 

;  of  the  agreement.     A  bill  to  compel  the  performance  of  such  an  agreement  has  indeed 

the  characteristics  of  a  bill  by  a  cestui  que  trust  against  a  trustee,  rather  than  of  a  bill 

for  the  specific  performance  of  a  contract. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  65 

land  "  to  A,  yet  A  will  take  no  more  than  a  naked  legal  title  to  the 
piece  of  land  directed  to  be  sold.  Nor  is  a  will  the  only  means 
by  which  an  owner  of  property  can  effect  an  equitable  conversion 
of  it.  He  can  also  convert  his  land  into  money  by  a  contract  to 
sell  the  former,  and  he  can  convert  his  money  into  land  by  a  con- 
tract to  buy  land  ;  and  if  he  died  intestate  after  making  such  a 
contract,  though  before  performance  of  it,  his  heir  may,  in  the 
one  case,  be  compelled  by  the  executor  to  convey  the  land,  though 
the  purchase-money  will  go  to  the  executor,  while,  in  the  other 
case,  the  executor  may  be  compelled  by  the  heir  to  pay  for  the 
land,  though  the  land  will  be  conveyed  to  the  heir.  Moreover, 
this  equitable  conversion  undoubtedly  takes  place  the  moment  the 
contract  is  made  ;  i.  c,  the  conversion,  when  actually  made,  will 
relate  back  to  the  time  when  the  contract  was  made.  Why  ^ 
Because  the  equitable  conversion  depends  upon  the  intention  of 
the  owner  of  the  property,  as  shown  by  his  making  the  contract. 
But  this,  surely,  has  nothing  to  do  with  the  relations  between 
the  vendor  and  the  vendee,  and  consequently  nothing  to  do  with 
the  question  whether  the  ownership  of  the  land  has  passed  from  the 
vendor  to  the  vendee.  It  is  a  matter  entirely  between  one  of  the 
contracting  parties  and  his  representatives,  and  in  regard  to  which 
the  other  contracting  party  neither  has  any  right,  nor  is  subject  to 
any  duty.  In  a  word,  it  is  not  the  contract  qua  contract  that  effects 
the  equitable  conversion,  but  the  contract  as  expressing  the  inten- 
tion of  one  of  the  parties  to  it  in  reference  to  a  matter  within  his 
exclusive  control. 

We  now  come  to  the  subject  of  the  jurisdiction  of  equity  over 
legal  duties  which  do  not  amount  to  obligations.  Although  any 
failure  to  perform  a  duty  of  this  kind  (as  it  is  not  a  breach  of  obli- 
gation) is  a  tort,  yet,  as  it  consists  merely  in  non-feasance,  it  is 
closely  analogous,  in  respect  to  equity  jurisdiction,  to  a  breach  of 
an  affirmative  contract  or  other  affirmative  obligation.  For  ex- 
ample, as  equity  cannot  prevent  the  latter,  so  neither  can  it  the 
former  ;  and  therefore  specific  reparation  is  the  utmost  relief  that 
equity  can  give  in  respect  to  the  former,  as  it  is  in  respect  to  the 
latter.  There  are,  however,  important  differences  in  respect  to 
equity  jurisdiction  between  affirmative  contracts  and  legal  duties, ' 
whether  the  latter  amount  to  obligations  or  not.  For  example, 
all  legal  duties  (or  at  least  all  that  equity  would  ever  attempt  to 
enforce)  are  unilateral,  and  therefore  the  enforcement  of  them 
never   involves    any  of   those   difficulties  which   are  peculiar   to 

5 


66  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

bilateral  contracts.  On  the  other  hand,  legal  duties  generally 
consist  only  in  doing,  while  affirmative  contracts  consist  in  giving 
as  well ;  and,  as  the  jurisdiction  of  equity  over  affirmative  contracts 
is  mostly  confined  to  those  which  consist  in  giving,  it  follows  that 
the  exercise  of  this  latter  jurisdiction  will  seldom  furnish  a  prece- 
dent for  equity's  assuming  jurisdiction  over  legal  duties.  Indeed, 
the  difficulty  which  equity  experiences  in  enforcing  a  specific  repa- 
ration which  consists  in  doing  is  precisely  the  same,  whether  the 
thing  to  be  repaired  be  the  breach  of  an  affirmative  contract  or  of 
a  legal  duty,  or  be  a  tort  which  consists  in  mis-feasance,  assuming, 
of  course,  that  the  latter  is  one  which  is  in  its  nature  capable  of 
being  specifically  repaired  ;  and,  therefore,  the  rule,  as  to  equity's 
assuming  jurisdiction,  ought  to  be,  and  generally  is,  the  same  in 
all  these  cases.  And  hence  it  follows  that,  as  equity  will  seldom 
enforce  specific  reparation  of  a  tort  which  consists  in  mis-feasance, 
or  of  the  breach  of  an  affirmative  contract  which  consists  in  doing, 
so  it  will  seldom  enforce  a  specific  reparation  of  a  breach  of  a  legal 
duty.  For  example,  an  owner  of  a  particular  estate  in  land  is  sub-  * 
ject  to  the  legal  duty  of  keeping  the  estate  in  repair,  and  a  breach 
of  that  duty  constitutes  that  species  of  tort  called  permissive 
waste  ;  but  as  equity  will  not  enforce  specific  reparation  of  a 
breach  of  a  contract  to  repair,  so  it  has  been  long  settled  that 
equity  will  not  enforce  specific  reparation  of  permissive  waste.^ 

It  has  been  shown  on  a  previous  page^  that  equity  might  en- 
force specific  reparation  of  torts  which  consist  in  mis-feasance  in 
many  cases  in  which  it  has  hitherto  declined  to  do  so,  and  that  it 
ought  to  do  so  whenever  a  specific  reparation  is  necessary  for  the 
purposes  of  justice.  And  the  same  argument  is  applicable  to 
breaches  of  affirmative  contracts  which  consist  in  doing,^  and 
to  breaches  of  legal  duties. 

In  the  foregoing  observations  upon  the  jurisdiction  of.  equity 
over  legal  duties,  reference  has  been  had  to  such  legal  duties  only 
as  are  imposed  by  the  common  law.  There  are  important  legal 
duties  imposed  by  the  canon  law  ;  but  the  jurisdiction  of  equity 
over  these  depends  upon  different  considerations  from  those 
hitherto  presented,  and  the  treatment  of  it  will  therefore  be  post- 
poned until  we  come  to  the  jurisdiction  of  equity  over  canon-law 
rights. 

1  See  Lord  Castlemaine  v.  Lord  Craven,  22  Vin.  Abr.  523,  pi.  n. 

2  Supra,  pp.  36,  37. 

8  See  Clark  v.  Glasgow  Ass.  Co.,  i  MacQueen,  668,  670. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  67 

As  the  jurisdiction  of  equity  over  those  torts  which  consist  in 
non-feasance  (/.  c,  negative  torts)  is  analogous  to  its  jurisdiction 
over  affirmative  contracts,  so  the  jurisdiction  of  equity  over  those 
contracts  which  consist  in  non-feasance  {i.e.,  negative  contracts) 
is. analogous  to  its  jurisdiction  over  torts  which  consist  in  mis-fcas- 
ance  {i.e.,  affirmative  torts). 

In  respect  to  the  mode  in  which  equity  exercises  its  jurisdiction 
over  them  respectively,  the  analogy  between  a  negative  contract 
and  an  affirmative  tort  is  perfect.  Thus,  the  ordinary  mode  of 
exercising  equity  jurisdiction  over  each  is  by  granting  an  injunc- 
tion to  prevent  a  breach  of  the  one  or  a  commission  of  the  other, 
and  it  is  this  mode  alone  which  measures  the  extent  of  the  juris- 
diction which  equity  will  exercise  over  each.  So  if  a  negative 
contract  have  already  been  broken,  or  if  an  affirmative  tort  have 
already  been  committed,  the  only  relief  that  equity  can  give 
(except  incidentally),  either  for  the  breach  of  contract  or  for  the 
tort,  is  specific  reparation  ;  and  the  reasons  for  giving  or  withhold- 
ing that  relief  are  the  same  as  to  each.  Finally,  if  an  injunction 
be  granted  to  prevent  the  breach  of  a  negative  contract  or  the 
commission  of  an  affirmative  tort,  equity  will  incidentally  give 
relief,  in  the  one  case,  for  any  breach  of  the  contract  already  com- 
mitted, and,  in  the  other,  for  any  tort  already  committed,  if  the 
case  be  one  which  admits  of  any  relief  which  equity  can  give,  e.g., 
an  account  of  profits  ;  and  the  principle  upon  which  equity  gives 
such  incidental  relief  is  the  same  in  each  case,  namely,  that  of  pre- 
venting a  multiplicity  of  suits.-' 

^  In  respect  to  the  jurisdiction  of  equity  over  breaches  of  contract  already  com- 
mitted, there  is  no  analogy  between  affirmative  and  negative  contracts.  In  strictness 
there  can  be  but  one  breach  of  an  affirmative  contract,  as  the  slightest  breach  of  such 
a  contract  is  a  breach  of  the  entire  contract,  and  puts  an  end  to  it.  There  can,  in 
strictness,  therefore,  be  no  performance  of  any  part  of  an  affirmative  contract  which  has< 
once  been  broken.  This  is  true  even  of  those  contracts  which  require  the  perform- 
ance of  a  series  of  acts,  apparently  independent  of  each  other.  For  example,  though 
a  contract  for  the  purchase  and  sale  of  chattels  provide  for  a  delivery  in  instalments,  yet 
a  breach  as  to  any  instalment  will  be  a  breach  also  as  to  all  subsequent  instalments. 

As  an  affirmative  contract  admits  of  but  one  breach,  so  it  can  create  but  one  cause  of 
action.  Therefore,  if  an  action  at  law  be  brought  for  a  breach  of  an  affirmative  contract, 
damages  will  be  given  upon  the  whole  contract,  and  the  judgment  in  that  action  will  be 
a  bar  to  any  future  action.  Hence,  if  equity  assume  jurisdiction  over  such  a  contract  at 
all,  it  must  assume  jurisdiction  over  the  entire  contract,  and  give  full  relief.  It  cannot 
give  relief  as  to  a  part  of  the  contract,  and  leave  the  plaintiff  to  sue  at  law  as  to  the 
remainder.  It  would  be  a  wrong  to  a  defendant  to  permit  a  single  cause  of  action  to  be 
made  the  subject  of  two  actions  against  him.  Moreover,  equity  can  never  permit  an 
action  at  law  to  be  brought  upon  a  cause  of  action  which  has  been  the  subject  of  a 
decree   in   equity. 


68  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

In  respect,  however,  to  the  extent  of  the  jurisdiction  exercised 
by  equity  over  them  respectively  by  way  of  prevention,  and  the 
reasons  for  which  it  is  exercised,  there  is  little  analogy  between  a 
negative  contract  and  an  affirmative  tort.  If,  indeed,  a  negative 
contract  consist  in  not  doing  an  act  the  doing  of  which  equity 
would  prevent  as  a  tort,  then  equity  will  also  prevent  the  doing  of 
it  as  a  breach  of  contract.  For  example,  if  a  tenant  covenant  with 
his  landlord  not  to  commit  -^aste  on  the  demised  premises,  the 
landlord  can  have  an  injunction  against  the  committing  of  waste 
by  the  tenant,  either  on  the  ground  that  it  would  be  a  tort,  or  on 
the  ground  that  it  would  be  a  breach  of  contract.  But  the  converse 
of  this  does  not  hold  ;  for  equity  will  frequently  prevent  the  breach 
of  a  negative  contract,  though  it  consist  in  not  doing  an  act  which 
is  not  such  a  tort  as  equity  will  prevent,  or  (which  is  generally 
the  fact)  is  not  a  tort  at  all. 

Nor  is  there  much  analogy  between  negative  and  affirmative 
contracts,  in  respect  either  to  the  extent  of  the  jurisdiction  exer- 
cised by  equity  over  them,  or  the  reasons  for  its  exercise.  It  is 
doubtless  true  that  the  mere  fact  of  a  contract  being  negative 
is  never  in  itself  a  reason  why  equity  should  not  exercise 
jurisdiction  over  it ;  and,  therefore,  cases  may  possibly  arise 
in  which  equity  will  enforce  a  negative  contract,  and  yet  proceed 
independently  of  the  fact  that  the  contract  is  negative  ;  but  such 
cases  will  be  very  rare.  And  yet  the  jurisdiction  exercised  by 
equity  over  negative  contracts  is  much  more  extensive  than  that 
exercised  over  affirmative  contracts.  Whenever,  therefore,  equity 
exercises  jurisdiction  over  a  negative  contract,  it  will  be  found  to 
be  almost  invariably  true  that  the  jurisdiction  rests  entirely  upon 
the  fact  that  the  contract  is  negative.  In  what  cases,  then,  will 
equity  assume  jurisdiction  over  a  contract  upon  the  single  ground 
that  it  is  negative  .-*  First,  it  seems  that  equity  will  always  restrain 
a  breach  of  a  unilateral  covenant  or  promise,  if  it  be  negative ; 
for,  if  a  covenant  or  promise  is  unilateral,  it  follows  that  the  con- 

A  negative  contract,  on  the  other  hand,  may  be  capable  of  an  indefinite  number  of 
breaches,  each  breach  constituting  a  separate  and  independent  cause  of  action.  In  such 
a  case,  therefore,  it  does  not  follow,  because  equity  has  jurisdiction  to  prevent  breaches 
in  future,    that   it    has  jurisdiction,  also,   over   breaches   already  committed. 

It  must  be  admitted  that  legal  duties  are  analogous  to  negative  contracts  in  respect 
to  the  number  of  breaches  of  which  they  are  capable.  Yet,  as  equity  seldom  assumes 
jurisdiction  over  legal  duties,  and  never  prevents  breaches  of  them,  it  will  rarely  happen 
that  the  jurisdiction  of  equity  will  be  affected  by  the  fact  that  a  legal  duty  is  capable  of 
an  indefinite    number  of  breaches. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  69 

sidcration  for  it  has  already  been  received,  i.  c,  that  the  covenant 
or  promise  has  been  fully  paid  for ;  and,  as  equity  can  restrain  a 
breach  of  a  negative  covenant  or  promise  without  difficulty,  it  is 
not  thought  consistent  with  justice  to  permit  a  person  who  has 
given  such  a  covenant  or  promise,  and  who  has  the  consideration 
for  it  in  his  pocket,  to  break  his  covenant  or  promise  at  his  pleasure, 
and  thus  to  leave  the  covenantee  or  promisee  to  such  indemnity  as 
he  can  obtain  by  an  action  for  damages,  —  a  remedy  which  may 
prove  worthless,  after  the  expense  of  obtaining  a  verdict  and  judg- 
ment has  been  incurred,  because  of  the  insolvency  of  the  defend- 
ant.^ Secondly,  though  a  negative  covenant  or  promise  constitute 
one  side  of  a  bilateral  contract,  yet  if  the  negative  covenant  or 
promise  be  not  dependent  upon  the  covenant  or  promise  which 
constitutes  the  other  side  of  the  contract,  it  seems  that  equity  will 
restrain  a  breach  of  the  former.  In  such  a  case,  as  the  perform- 
ance of  the  negative  covenant  or  promise  is  absolutely  due  to  the 
covenantee  or  promisee,  the  effect  is  the  same  as  if  the  negative 
covenant  or  promise  were  unilateral,  so  far  as  regards  the  question 
now  under  consideration. ^     Thirdly,  though  a  negative  covenant 

1  "  It  is  said  that  the  court  may  execute  a  negative  contract.  I  admit  it.  I  remember  a 
case  in  which  a  nephew  wished  to  go  on  the  stage,  and  his  uncle  gave  him  a  large  sum 
of  money  in  consideration  of  his  covenanting  not  to  perform  within  a  particular  district; 
the  court  would  execute  such  a  covenant  on  the  ground  that  a  valuable  consideration  had 
been  given  for  it."  Per  Sir  L.  Shadwell,  V.  C.,  in  Kimberley  v.  Jennings,  6  Sim.  340, 
351.  And  see  the  observations  of  Lord  Cottenham  in  Dietrichsen  v.  Cabburn,  2  Ph. 
52,  57- 

A  common  instance  of  a  covenant  which  is  negative  and  unilateral,  and  which,  there- 
fore, equity  will  enforce,  is  a  covenant  not  to  carry  on  a  particular  trade  or  business 
within  a  particular  district.  Williams  z/.  Williams,  2  Swanst.  253,332;  Rolfe  z/.  Rolfe, 
15  Sim.  88;  Swallow  v.  Wallingford,i2  Jur.403;  Whittakerz/.  Howe,  3  Beav.  3S3.  And 
see  Lumley  v.  Wagner,  i  De  G.,  M.  &  G.  604,  6io-6ir. 

It  seems  that  the  defendant's  agreement  was  unilateral  in  Hills  v.  Croll,  2  Ph.  60.  See 
reporter's  note,  pp.  62-63.  ^ee  also  the  report  of  the  case  in  i  Real  Prop,  and 
Conv.  Cases,  541,  553.  Undoubtedly  the  defendant  would  have  been  at  liberty  to 
purchase  acids  elsewhere,  unless  the  plaintiff  would  supply  him  with  acids;  but  that 
seems  to  have  been  no  valid  objection  to  granting  an  injunction  against  the  defendant's 
purchasing  acids  elsewhere^proYLded^tke  plaintifL>v:auId^suppJy  him.  See  i  Real  Prop, 
and  Conveyancing  Cases,  541,  555.  -     ' 

The  case  of  Catt  v.  Tourle,  L.  R.  4  Ch.  654,  furnishes  another  instance  of  a  covenant 
held  to  be  enforceable  in  equity,  because  it  was  negative  and  unilateral.  There,  also, 
the  defendant  would  be  entitled  to  obtain  beer  elsewhere,  if  the  plaintiff  did  not  supply 
him  with  beer  of  good  quality  and  at  a  fair  price.  Hence  the  observation  just  made 
upon  Hills  V.  Croll.  in  respect  to  the  form  of  the  injunction,  is  applicable  also  to  this 
case. 

2  Thus  in  Kemble  v.  Kean,  6  Sim.  333,  the  defendant  made  an  absolute  and  binding 
promise  to  the  plaintiff,  in  January,  1829,  not  to  play  in  London  during  the  then  current 


70  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

or  promise  constitute  one  side  of  a  bilateral  contract,  and  be  de- 
pendent upon  the  covenant  or  promise  which  constitutes  the  other 
side  of  the  contract,  yet,  after  full  performance  of  the  latter,  equity- 
will  restrain  a  breach  of  the  former;  for,  when  one  side  of  a 
bilateral  contract  is  fully  performed,  the  other  side  becomes  uni- 
lateral. Fourthly,  though  a  negative  covenant  or  promise  con- 
stitute one  side  of  a  bilateral  contract,  and  be  dependent  on  the 
covenant  or  promise  which  constitutes  the  other  side  of  the  con- 
tract, yet,  if  the  latter  have  been  performed  in  part,  and  there 
have  been  as  yet  no  breach  of  it,  equity  will  restrain  a  breach  of 
the  former;^  but  if  an  injunction  be  granted  in  such  a  case,  and 
afterwards  there  be  a  breach  of  the  covenant  or  promise  which 
constitutes  the  other  side  of  the  contract,  the  injunction  will  have 
to  be  dissolved,  unless  the  covenant  or  promise  which  constitutes 
the  other  side  of  the  contract  be  of  such  a  nature  that  equity  can 
enforce  it.^  Fifthly,  if  a  negative  covenant  or  promise  constitute 
one  side  of  a  contract  which  is  partly  unilateral  and  partly  bilateral, 
the  neo-ative  covenant  or  promise  will  be  independent  of  the  other 
side  of  the  contract,  unless  it  be  made  expressly  dependent ;  and 


season;  and  it  seems  that  that  promise  would  have  been  enforced  by  injunction.  It 
must  be  admitted,  however,  that  such  a  case  is  not  so  strong  as  that  of  a  purely  unilateral 
covenant  or  promise. 

1  Dietrichsen  v.  Cabburn,  2  Ph,  52.  It  seems,  therefore,  that  the  plaintiff  was  entitled 
to  an  injunction  in  Hills  v.  CroU,  supra,  though  it  be  assumed  that  there  was  a  promise 
on  the  part  of  the  plaintiff,  and  even  that  performance  by  the  defendant  was  conditional 
upon  performance  by  the  plaintiff.     See  reporter's  note,  pp.  62,  63-64. 

For  the  reason  stated  in  the  text,-it  seems  that  the  plaintiff  was  entitled  to  an  injunc- 
lion  in  Fothergill  v.  Rowland,  L.  R.  17  Eq.  132.     See  infra,  p.  71,  note  2. 

It  seems  to  be  a  fatal  objection  to  the  decision  in  Lumley  v.  Wagner,  i  DeG.,  M.  &  G. 
604,  as  well  as  to  that  in  Donnell  v.  Bennett,  22  Ch.  D.  835,  that  there  had  been  no 
part-performance  by  the  plaintiff. 

2  See  Stocker  v.  Wedderburn,  3  Kay  &  J.  393.  There  may  be  instances  in  which  the 
practice  stated  in  the  text  may  be  applied  to  affirmative  covenants  and  promises,  provided 
the  latter  be  of  such  a  nature  that  equity  can  enforce  them.  For  example,  in  Brett  v, 
E.  I.  &  L.  Shipping  Co.,  2  H.  &  M,  404,  if  the  only  breach  committed  by  the  defendants 
had  been  in  omitting  the  plaintiff's  flame  from  their  advertisements,  it  would  seem  that 
the  court  might  have  made  a  decree  requiring  the  defendants  to  insert  the  plaintiff's 
name  in  their  advertisements,  leave  being  given  to  the  defendants  to  apply  to  the  court 
to  be  relieved  from  such  decree,  in  the  event  of  there  being  a  breach  of  the  contract  by 
the  plaintiff. 

In  Peto  V.  B.  U.  &  T.  W.  Railway  Co.,  i  H.  &  M.  46S,  the  obstacle  in  the  plaintiff's  way 
was  that  the  acts  which  he  sought  to  have  restrained  were  not  a  breach  of  the  defendants' 
contract.  If  there  had  been  a  covenant  or  promise  by  the  defendants  not  to  do  the  acts 
in  question,  it  seems  that  the  plaintiff  would  have  been  entitled  to  an  injunction. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  7 1 

if  independent,  equity  will  restrain  a  breach  of  it.^  Sixthly, 
though  the  foregoing  propositions  are  in  terms  limited  to  the  case 
where  a  negative  covenant  or  promise  constitutes  the  whole  of  one 
side  of  a  contract,  yet  it  is  immaterial,  so  far  as  regards  the  ques- 
tion of  equity  jurisdiction,  whether  a  single  negative  covenant  or 
promise  or  several  negative  covenants  or  promises  constitute  one 
side  of  a  contract.  Seventhly,  it  will  be  no  objection  to  enforcing 
a  negative  covenant  or  promise  in  equity  that  such  covenant  or 
promise  constitutes  only  a  part  of  one  side  of  a  contract,  the  remain- 
der being  affirmative,  if  the  latter  be  of  such  a  nature  that  equity  can 
enforce  that  also  ;  ^  or  if.  the  negative  part  be  so  separate  and 
distinct  from  the  affirmative  part  that  the  former  ought  to  be  per- 
formed, whether  the  latter  be  performed  or  not  ;^  or  if  there  have 
been  as  yet  no  breach  of  the  affirmative  part  ;'^  but  if  an  injunction 

1  A  negative  covenant  in  a  lease  is  an  instance  of  this.  Barret  v.  Blagrave,  5  Ves.  555, 
6  Ves.  104;  Hooper  v.  Brodrick,  11  Sim.  47.  In  W.  &  W.  Railway  Co.  v.  L.  &  N.  W. 
Railway  Co.,  L.  R.  16  Eq.  433,  the  defendants  were  in  effect  lessees  of  a  line  of  rail- 
way, the  plaintiffs  being  the  lessors. 

In  Hills  v.  Croll,  supra,  if  the  contract  was  not  purely  unilateral,  it  seems  that  it  was 
at  least  partly  so,  in  consequence  of  the  payment  of  the;^200  by  the  plaintiff;  and  if  so, 
the  plaintiff  was  for  that  reason  entitled  to  an  injunction. 

2  It  seems  that  equity  had  no  jurisdiction  over  the  affirmative  part  of  the  defendant's 
contract  in  W.  &  W.  Railway  Co.  v.  L.  &  N.  W.  Railway  Co.,  supra. 

'^  Such  was  in  terms  the  nature  of  the  negative  promise  in  Kimberley  v.  Jennings,  6 
Sim.  340;  but  the  court  held  that,  if  such  was  its  true  construction,  it  was  so  hard  a 
bargain  that  equity  would  not  enforce  it.  In  Rolfe  v.  Rolfe,  15  Sim.  8S,  it  does  not  ap- 
pear that  there  was  an  affirmative  covenant  by  the  defendant,  William  Rolfe,  to  serve  the 
plaintiff  as  a  cutter;  but,  even  if  there  were,  the  negative  covenant  was  wholly  distinct 
from  it.  In  W.  &  \V.  Railway  Co.  v.  L.  &  N.  W.^Kailway  Co.,  supra,  in  Donnell  v. 
Bennett,  supra,  in  Brett  v.  E.  I.  &  L,  Shipping  Co.,  supra,  in  Hooper  v.  Brodrick, 
supra,  and  in  Fothergill  v.  Rowland,  supra,  it  seems  that  the  affirmative  covenants 
covered  all  the  ground  that  was  covered  by  the  negative  covenants,  but  not 
that  alone;  that,  therefore,  though  every  breach  of  the  negative  covenant  in  each  of 
those  cases  would  be  also  a  breach  of  the  affirmative  covenant,  the  converse  was  not  true. 
In  all  such  cases,  it  seems  that  equity  may  enforce  the  negative  covenant,  though  the 
affirmative  covenant  be  broken,  and  equity  be  not  able  to  enforce  that. 

*  Morris  v.  Colman,  iS  Ves.  437;    Dietrichsen  v.  Cabburn,  supra. 

In  Kemblez/.  Kean,  supra,  and  in  Lumley  z^.  Wagner,  supra,  the  defendant's  covenants 
were  both  affirmative  and  negative,  both  the  affirmative  and  the  negative  parts  had  been 
broken,  the  court  had  no  jurisdiction  over  the  affirmative  parts,  and  ^the  affirmative  and 
negative  parts  were  so  inseparably  connected  that  the  latter  could  not  properly^e  en- 
forced unless  the  former  were  performed.  The  decisiiui,_therefore,  in  Lumley  v.  Wagner 
ought,  it  seems,  to  have  followed  that  in  Kemble  v,  .Key.  A  consequence  of  the  de- 
cision in  the  plaintifTs  favor  was  that  a  part  of  the  contract  was  enforced  after  the  con- 
tract was  at  an  end,  and  after  a  right  had  accrued  to  the  plaintiff  to  recover  full  damages 
for  its  breach.  Moreover,  the  defendant  still  remained  liable  for  full  damages  at  law, 
notwithstanding  the  decision  against  her  in  equity. 


72  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

be  granted  on  this  latter  ground  alone,  it  will  have  to  be  dissolved 
in  the  event  of  the  affirmative  part  being  afterwards  broken.i 

Care  must  be  taken  not  to  assume  unwarrantably  that  a  contract 
contains  a  negative  covenant  or  promise  ;  for  it  does  not  follow, 
because  a  breach  of  a  covenant  or  promise  may  consist  of  acts  of 
mis-feasance,  that  therefore  the  covenant  or  promise  is  negative. 
Accordingly  it  seems  that  there  was  no  negative  promise  in  Smith 
V.  Fromont  ;2  and  that  fact  alone  was  a  sufficient  ground  for  refus- 
ing an  injunction.  Whether  a  covenant  or  promise  is  affirmative  or 
negative  does  not  necessarily  depend,  however,  upon  the  terms  in 
which  it  is  expressed ;  for  it  may  in  truth  be  negative,  though  it 
contain  no  negative  terms.  For  example,  in  Clarke  v.  Price,^  if 
the  true  construction  of  the  contract  was,  that  while  the  defendant 
was  not  bound  to  report  cases  for  publication,  yet  if  he  did  do  so 
the  plaintiff  was  entitled  to  publish  them  on  the  terms  specified  in 
the  contract,  it  would  seem  to  follow  that  the  defendant's  promise 
was  purely  negative,  i.  e.,  not  to  employ  any  other  person  than  the 
plaintiff  as  a  publisher,  and  not  to  be  his  own  publisher  ;  and  hence 
that  an  injunction  ought  to  have  been  granted.*  •  The  same  ob- 
servation is  also  applicable  to  the  case  of  Baldwin  v.  So.  for  Dif- 
fusion of  Useful  Knowledge.5  So,  in  Hills  v.  Croll,  the  defend- 
ant's promise  would  seem  to  have  been  purely  negative,  namely,  to 
buy  of  no  one  but  the  plaintiff,  and  to  sell  to  no  one  but  the 
plaintiff ;  and,  if  so,  the  injunction  clearly  ought  to  have  been 
granted.  In  Hooper  v.  Brodrick  there  would  seem  to  have  been 
an  implied  negative  agreement  not  to  use  the  house  for  any  other 
business  than  inn-keeping,  provided  a  license  could  be  obtained. 
In  W.  &  W.  Railway  Co.  v.  L.  &  N.  W.  Railway  Co.,  though  the 
agreement  was  wholly  affirmative  in  form,  it  was  partly  negative  in 
effect ;  and  the  same  thing  is  true  of  Fothergill  v.  Rowland. 
Finally,  in  Catt  v.  Tourle,  the  agreement,  though  affirmative  in 
form,  was  wholly  negative  in  effect. 


1  See  supra,  page  70,  and  note  2.  2  2  Swanst.  330.  *  2  Wilson,  157. 

*  The  agreement  between  the  parties,  as  finally  modified,  was  for  the  sale  to  the 
plaintiff  of  all  the  cases  that  the  defendant  should  report,  at  a  fixed  price,  namely,  £  7 
for  every  sheet  of  16  printed  pages. 

8  9  Sim.  393. 


ARTICLE    IV} 


IV. 

Bills  for  an  Account. 

IT  may  have  occurred  to  the  reader  to  ask  why  the  jurisdiction 
exercised  by  equity  over  contracts  and  other  obligations  is 
designated  as  specific  performance,  since  equity  always  exercises 
its  jurisdiction  by  compelling  performance,  and  always  makes 
such  performance  as  specific  as  it  is  practicable  to  make  it,  and 
since  the  performance  which  equity  enforces,  in  cases  of  contracts 
and  other  obligations,  is  no  more  specific  than  it  is  in  other  cases. 
The  answer  to  this  question  seems  to  be  that  the  term  "specific 
performance  "  is  used,  not  to  indicate  the  nature  of  the  relief  given 
by  equity,  but  to  indicate  the  reason  and  the  object  of  the  juris- 
diction assumed  by  equity, —  the  reason  being  that  a  compensa- 
Hon  in  money  is  an  inadequate  remedy,  and  the  object  therefore 
being  to  afford  a  remedy  by  way  of  specific  performance  or 
specific  reparation.  In  other  words,  the  term  "specific  perform- 
ance" is  used,  not  to  indicate  that  the  relief  given  by  equity  in 
such  cases  differs  from  the  relief  which  equity  gives  in  other 
cases,  but  to  mark  the  distinction  between  the  relief  given  by 
equity  and  the  relief  given  at  law  in  such  cases.  Accordingly, 
when  (as  is  often  the  case)  equity  assumes  jurisdiction  over  con- 
tracts and  other  obligations,  not  because  a  compensation  in  money 

i  2  Harv.  L.  Rev.  241. 


74  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

is  an  inadequate  remedy  for  a  breach,  but  for  some  other  reason, 
—  when  in  fact  the  relief  given  is  the  same  in  equity  as  at  law, 
namely,  a  compensation  in  money,  —the  jurisdiction  is  never 
designated  by  the  term  "specific  performance." 

The  preceding  article  comprised  all  that  it  was  proposed  to  say 
upon  the  subject  of  specific  performance  ;  but  it  remains  to  speak 
of  three  important  classes  of  cases  in  which  equity  assumes  juris- 
diction over  contracts  or  other  obligations,  and  yet  gives  no  other 
relief  than  a  compensation  in  money  ;  namely,  first,  bills  for  an 
account ;  secondly,  bills  in  the  nature  of  an  action  of  assumpsit,  or 
bills  of  equitable  assumpsit  ;  thirdly,  creditors'  bills,  i.e.,  bills  filed 
by  creditors  of  persons  deceased  against  the  executors  or  adminis- 
trators of  the  debtors  to  compel  the  payment  of  the  debts. 

Bills  for  an  Account. 

Every  bill  for  an  account  must  be  founded  upon  an  obli- 
gation to  render  an  account.  What  then  is  the  nature  of 
such  an  obligation,  and  when  does  it  exist  t  In  strictness  this 
question  does  not  belong  to  the  subject  of  these  articles ; 
but  the  obligation  to  render  an  account  is  so  little  understood, 
that  a  knowledge  of  it  cannot  properly  be  assumed.  It  was 
formerly  well  enough  understood  by  common-law  lawyers,  but, 
with  the  disuse  of  the  action  of  account,  nearly  all  knowledge  of 
it  has  been  lost  by  them.  It  might  be  supposed  that  what  com- 
mon-law lawyers  ceased  to  know  in  this  regard,  equity  lawyers 
would  have  learned  ;  but  such  is  not  the  fact.  Partly  from  an  in- 
disposition among  equity  lawyers  to  study  common-law  learning, 
which  common-law  lawyers  regard  as  obsolete,  and  partly  for 
another  reason,  the  obligation  to  account  has  never  been  well 
understood  by  equity  lawyers.  The  other  reason  is  the  wide,  in- 
determinate, and  vague  sense  in  which  the  term  "account"  has 
always  been  used  in  equity.  It  has  been  usual  to  call  all  bills  in 
equity  which  may  involve  a  reference  to  a  master  to  take  an 
account  of  any  kind  or  for  any  purpose  (and  such  bills  are  many 
in  number  and  very  diverse  in  character)  bills  for  an  account, 
especially  as  often  as  it  has  been  found  necessary  to  give  them 
that  name  in  order  to  sustain  them  in  point  of  jurisdiction;  and 
the  fact  has  not  been  recognized  that  such  bills  are  true  bills  for 
an  account  only  when  they  are  founded  upon  a  legal  obligation  to 
render  an  account,  and  that  in  all  other  cases  they  rest  upon  some 
other  principle  in  point  of  jurisdiction. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  75 

The  obligation  to  render  an  account  is  not  founded  upon  con- 
tract, but  is  created  by  law  independently  of  contract.  Of  course 
there  may  be  in  terms  a  promise  or  a  covenant  to  render  an  ac- 
count, or  a  bond  may  be  upon  the  condition  that  the  obligor 
render  an  account,  and  such  promise,^  covenant,^  or  bond^  may 
support  an  action  at  law,  but  neither  of  them  will  ever  create  an 
obligation  to  account,  any  more  than  a  promise  to  pay  a  definite 
sum  of  money  will  create  a  debt ;  for  if  the  facts  from  which  the 
law  raises  such  an  obligation  do  not  exist,  the  obligation  will  not 
exist,  notwithstanding  such  promise,  covenant,  or  bond  ;  and  if 
such  facts  do  exist,  the  law  will  raise  the  obligation  to  account  in- 
dependently of  the  promise,  covenant,  or  bond,  and  the  latter  will 
be  entirely  collateral  to  the  former.* 

What  then  are  the  facts  which  must  exist  in  order  to  induce  the 
law  to  raise  an  obligation  to  account  .-*  First,  the  person  upon 
whom  such  an  obligation  is  sought  to  be  imposed  (and  whom  we 
will  call  the  defendant)  must  have  received  property  of  some  kind 
not  belonging  to  himself  ;  for  otherwise  he  will  have  nothing  to 
account  for  or  to  render  an  account  of.  .  At  common  law  there 
are  only  three  classes  of  persons  who  can  incur  an  obligation  to 
account ;  namely,  guardians,  bailiffs,  and  receivers  ;  and  a  guar- 
dian, a  bailiff,  or  a  receiver  is  a  person  who__receives  property 
belonging  to  another.  As  to  a  guardian  or  a  receiver' "this  is 
obvious  ;  and  it  is  equally  true  as  to  a  bailiff.  Indeed,  "bailiff" 
has  the  same  derivation  and  the  same  meaning  as  "  bailee,"  each 
of  them  signifying  a  person  to  whom  property  is  bailed  or 
delivered. 

If  such  be  the  rule  at  common  law,  of  course  the  rule  in  equity 
must  be  the  same  in  substance  ;  for  it  is  the  common  law  that 
creates  the  obligation,  the  enforcement  of  it  being  alone  the  func- 
tion of  equity.  It  is  not,  indeed^  necessary  in  equity  to  describe 
a  defendant  as  a  guardian,  a  bailiff,  or  a  receiver,  in  order  to 
maintain  a  bill  against  him  for  an  account ;  nor  is  it  necessary  to 
show  that  he  is  one  of  these  rather  than  another ;  but  it  is  indis- 

1  Spurraway  v.  Rogers,  12  Mod.  517;  Wilkin  v,  Wilkin,  i  Salk.  9,  i  Show.  7i> 
Comh.  149,  Carth.  89;  Owston  z/.  Ogle,  13  East,  538;  Topham  z/.  Braddick,  i  Taunt.  572. 

2  Barker  v.  Thorold,  i  Wms.  Saund.  47. 

8  Vere  v.  Smith,  2  Lev.  5,  I  Ventr.  121;   Anon,  i  L.  P.  R.  (ist  ed.),  32. 

*  I  Rol.  Abr.,  Accompt  (A),  pi.  5,  8;  Hawkins  v.  Parker,  2  Bulstr.  256,  i  Rol.  Abr., 
Accompt  (A),  pi.  15,  I  Rol.  Rep.  52;  Anon.,  Dyer,  51,  pi.  14.  See  Bro.  Abr.,  Accompt 
pi.  60. 


^6  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

pensable  that  he  have  in  truth  the  qualities  of  one,  of  two,  or  of  all 
three  of  these  classes  of  persons. 

The  distinctions  between  a  bailiff  and  a  receiver  are  important. 
A  receiver  is  one  who  receives  money  belonging  to  another  for  the 
sole  purpose  of  keeping  it  safely  and  paying  it  over  to  its  owner. 
If  the  thing  received  be  anything  else  than  money,  the  receiver  is 
a  bailiff ;  and  so  he  is,  though  the  thing  received  be  money,  if  he 
have  any  other  duty  to  perform  respecting  it  than  that  of  keeping 
it  safely  and  paying  it  over,  —  if,  e.g.,  he  be  bound  to  employ  it 
for  the  profit  of  its  owner ;  and  hence  the  rule  that  a  receiver  ad 
merchajidisandiim  is  a  bailiff.^  Moreover,  whether  a  person  be 
accountable  for  property  as  a  bailiff  or  as  a  receiver  depends  upon 
the  original  receipt,  and  not  upon  the  state  of  things  existing  at 
the  time  when  the  question  arises.  Therefore,  one  who  has  re- 
ceived property  as  a  bailiff  is  still  a  bailiff,  though  the  property 
have  all  been  converted  into  money,  and  the  only  duty  remaining 
be  to  pay  the  money  over  to  its  owner.^  In  short,  "  once  a 
bailiff,  always  a  bailiff"  is  the  rule. 

The  term  "baihff "  is  not  in  popular  use  in  this  country;  and 
even  in  England  its  popular  use,  as  applied  to  persons  who  are 
under  an  obligation  to  account,  is  confined  to  persons  who  have 
charge  of  land  belonging  to  others,  and  who  are  accountable  for  the 
rents  and  profits  of  such  land.^  Still,  in  law,  both  in  England  and 
in  this  country,  every  factor  or  commission-merchant  is  a  bailiff  in 
respect  to  the  goods  consigned  to  him  for  sale.* 

Secondly,  the  person.,  seeking  to  impose  the  obligation  (and 
whom  we  will  call  the  plaintiff)  must  be  the  owner  of  the  property 
in  respect  to  which  the  obligation  is  sought  to  be  imposed.  In 
other  words,  ownership  by  the  plaintiff  must  concur  with  posses- 
sion~by  the  defendant.  Until  these  two  things  co-exist,  the  obliga- 
tion to  account  cannot  exist ;  and  when  they  cease  to  co-exist,  the 
obligation  to  account  will  cease  to  exist.  If,  therefore,  the  property 
be  received  by  the  defendant  under  such  circumstances  that  it  be- 

'  1  Rol.  Abr.,  Accompt  (0),pl.  4,  5.  "If  a  writ  be  against  the  defendant  as  receiver, 
a  declaration  upon  a  receipt  ad  inerchandisandum,  for  which  he  is  chargeable  as  bailiff, 
Is  not  good."     Com.  Dig.,  Accompt  (E.  2). 

•^  I  Rol.  Abr.,  Accompt  (F),  pi.  2,  3;   Bro.  Abr.,  Accompt,  pi.  53. 

"  And  this  popular  meaning  seems  to  have  once  been  the  legal  meaning.  See  i  Vin. 
Abr.,  Account  (X),pl.  i;   Anon.,  Keilw.  114,  pi.  51. 

*  See  Godfrey  v.  Saunders,  3  Wilson,  73,  where  a  factor  was  sued  and  declared 
against   as   a   bailiff. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  77 

comes  his  own  the  moment  he  receives  it,  though  it  helonged  to 
the  plaintiff  up  to  that  moment,  no  obligation  to  account  will  ever 
arise.  Thus,  when  the  defendant  receives  money  belonging  to  the 
plaintiff,  but  receives  it  under  such  circumstances  that  he  has  a 
right  to  appropriate  it  to  his  own  use,  making  himself  a  debtor  to 
the  plaintiff  to  the  same  amount,  and  the  defendant  exercises  such 
right,  the  receipt  of  the  money  will  create  a  debt, — not  an  obli- . 
gation  to  account.  So  if  the  plaintiff's  title  to  the  property  be 
transferred  to  the  defendant,  after  the  latter  has  received  it  and 
become  accountable  to  the  plaintiff  for  it,  the  defendant's  account- 
ability for  the  property  will  from  that  moment  cease.  Thus,  if  the 
defendant  sell  property  as  the  plaintiff's  factor,  receive  the  pro- 
ceeds of  the  sale  and  appropriate  them  to  his  own  use,  debiting 
himself  with  their  amount,  his  accountability  will  thereupon  cease, 
provided  he  had  a  right  to  do  what  he  has  done  ;  and  he  will 
thenceforth  be  a  debtor  only  ;  /.  e.,  he  will  be  accountable  up  to  the 
moment  when  the  property  became  his,  and  from  that  moment 
he  will  cease  to  be  accountable  and  will  become  a  debtor. 

Thirdly,  the  defendant  must  not  receive  the  property  as  a  mere 
bai]e.e.  If,  therefore,  the  property  consist  of  land  or  of  goods,  the 
defendant  must  receive  it  either  for  the  purpose  of  converting  it 
"into  money  by  sale,  or  for  the  purpose  of  employing  it  in  such  a 
way  that  it  may  yield  a  profit  or  income  for  the  benefit  of  the  owner. 
When  the  property  consists  of  goods,  a  sale  is  the  more  common 
object  of  the  defendant's  employment'7  when  it  consists_jC)lland, 
the  more  common  object  is  the  receipt  of  the  rents  and  profits. 
When  the  object  is  a  sale,  the  defendant  is  accountable  for  the 
corpus  of  the  property  received;  when  the  object  is  the  receipt  of 
the  rents  and  profits  or  other  income,  the  defendant  is  accountable 
only  for  the  latter.  When  the  object  is  a  sale,  the  only  measure 
of  the  defendant's  accountability  is  the  property  received  by  him  ; 
when  the  object  is  the  receipt  of  the  rents  and  profits  or  other 
income,  the  defendant's  accountability  is  measured  by  the  length 
of  time  that  his  employment  has  continued,  as  well  as  by  the 
property  received  by  him. 

If  the  property  received  consist  of  money,  the  defendant  must 
not  be  bound  to  restore  to  the  plaintiff  the  identical  coin  received 
by  him  ;  for,  if  he  is,  he  will  be  a  mere  bailee,  e.  g.,  if  the  money 
be  sealed  up  in  a  bag.^     So  he  must    not,  as  has   been  seen,  have 

1  "If  one  receive  to  my  use  money  sealed  up  in  a  bag,  as  my  servant,  account  does 
not  lie  against  him."     F.N.  B.  n6  Q,  n.  (d).    "  If  ;/J  40  is  delivered  to  render  account 


78  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

a  right  to  appropriate  the  money  received  to  his  own  use,  for  then 
he  can  be  only  a  debtor.  But  he  must  receive  the  money  either 
to  keep  for  the  plaintiff,  or  to  employ  for  the  plaintiff's  benefit ; 
and  yet  his  obligation  must  be  capable  of  being  discharged  by  re- 
turning to  the  plaintiff  (not  the  identical  money  received,  but)  any 
money  equal  in  amount  to  the  sum  received.  For  money  cannot 
possibly  be  employed  so  as  to  yield  a  profit  or  income,  without 
losing  its  identity ;  and  though  it  may  be  so  kept  as  to  preserve 
its  identity,  yet  the  duty  of  so  keeping  it  will,  as  has  been 
seen,  make  the  keeper  a  mere  bailee.  Moreover,  such  a  mode  of 
keeping  money  is  very  unusual,  and  such  a  mode  of  keeping 
another  person's  money  would  presumptively  be  very  improper, 
for  the  recognized  mode  of  keeping  money  is  to  deposit  it  with  a 
banker  ;  and  yet  by  so  depositing  it  its  identity  is  lost,  for  the 
moment  it  is  deposited  it  becomes  the  property  of  the  banker,  the 
latter  becoming  indebted  to  the  depositor  in  the  same  amount. 

It  will  be  seen,  therefore,  that  in  respect  to  the  question  under 
consideration,  money  differs  from  land  or  goods  in  at  least  three 
particulars  :  first,  a  receiver  of  money  frequently  becomes  a  debtor 
instead  of  a  bailee,  though  the  object  for  which  he  is  made  receiver 
is  safe  custody  merely,  as  in  the  case  of  a  banker  ;  secondly,  a  re- 
ceiver of  money,  not  being  a  banker,  may  be,  and  commonly  is, 
accountable  for  the  money  received,  though  he  receive  it  for  safe 
custody  merely,  because,  though  not  a  debtor,  yet  he  is  not  bound 
to  preserve  the  identity  of  the  money  received ;  thirdly,  a  receiver 
of  money,  if  accountable  at  all,  is  always  accountable  for  the  cor- 
pus, since  it  is  impossible  that  a  receiver  of  money  should  be 
bound  to  return  the  identical  money  received,  and  yet  be  bound 
to  account  for  profits  made  by  employing  the  money. 

One  who  receives  money  for  which  he  is  accountable  may 
always  deposit  it  with  a  banker,  and  in  that  respect  he  is  like  one 
who  receives  money  for  which  he  becomes  a  debtor  ;  but,  unlike 

account  lies  well;  but  if  it  ia  delivered  to  re-bail  when  defendant  is  required,  account  lies 
not,  but  detinue."  Bro.  Abr.,  Accompt,  pi.  51.  "  If  money  be  delivered  to  render  an 
account,  account  lies;  but  if  it  was  delivered  to  keep  until  the  plaintiff  shall  require  it, 
account  doth  ncit  lie,  but  detinue  "  Brownl.  26.  "  In  account  as  receiver,  it  is  a  good 
plea  in  bar  that  the  money  was  delivered  to  him  to  carry  to  London  to  a  Lombard,  to 
make  exchange,  and  to  receive  letters  of  exchange,  and  to  send  them  to  plaintiff,  which  he 
had  done  accordingly.  For  this  is  equivalent  to  saying  that  he  never  was  his  receiver 
to  render  account;  for  this  was  delivered  to  him  to  exchange,  and  not  to  render  ac- 
count." I  Rol.  Abr.,  Accompt  (M),  pi.  7.  Compare  i  Rol.  Abr.,  Accompt  (N), 
pi.  14.     See,  also,  F.  N.  B.  119  D,  n.  (d). 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  79 

the  latter,  he  must  never  mix  the  money  for  which  he  is  account- 
able with  his  own  money  ;  and,  therefore,  he  must  always  deposit 
the  former  to  a  separate  account. 

The  measure  of  accountability  in  case  of  money  received  for 
safe  custody  merely  is  the  amount  of  money  received.  The 
receiver  is  not  accountable  for  profits,  for  he  has  no  authority  to 
employ  the  money.^  Of  course  he  is  not  bound  to  pay  interest, 
i.e.,  out  of  his  own  pocket ;  for  an  obligation  to  pay  interest 
would  imply  that  he  is  a  debtor.  The  measure  of  accountability 
in  case  of  money  received  for  the  purpose  of  employing  it  for  the 
benefit  of  the  plaintiff  is  the  amount  of  money  received,  and  also 
the  length  of  time  that  the  defendant  has  had  it. 

Fourthly,  in  order  that  one  may  be  accountable  for  property,  he 
must  have  received  it  into  his  possession  and  under  his  control ;  it 
is  not  sufficient  that  he  merely  have  the  custody  of  it  as  the 
servant  of  the  owner.^  Nor  does  this  distinction  depend  at  all 
upon  whether  the  servant  be  of  low  grade  or  of  liigh  grade.  He 
may  be  a  menial  servant,  or  he  may  be  the  chief  financial  officer 
of  a  corporation,  of  a  municipal  body,  or  even  of  a  sovereign 
State  ;  yet,  if  his  only  possession  is  his  employer's  possession,  he 
is  not  technically  accountable.^ 

One  need,  however,  have  possession  only  of  that  for  which  he 
is  accountable.  If,  therefore,  one  is  accountable  only  for  the  rents 
and  profits  or  other  income  of  property,  he  need  not  have  the 
legal  possession  of  the  corpus  of  that  property.  Indeed,  a  bailiff 
of  land,  as  such,  never  has  the  legal  possession  of  the  land  itself, 
but  he  does  have  the  possession  of  the  rents  and  profits  received 

^  In  account  as  receiver,  where  he  is  not  to  merchandise,  he  is  not  to  account  for 
profit;  aliter,  if  the  receipt  was  to  merchandise,  for  then  he  hath  a  warrant  to  gain  or 
lose.      I  Rol.  Abr.,  Accompt  (O),  pi.  14,  15. 

2  Account  "  does  not  lie  where  a  man  has  only  a  bare  custody  as  a  shepherd."  Com. 
Dig.,  Accompt  (D).  "  In  account  against  a  bailiff,  it  is  a  good  plea  that  he  was  servant 
to  the  plaintiff  to  drive  his  plough,  and  had  his  cattle  for  the  drawing  of  his  plough, 
absque  hoc  that  he  was  his  bailiff  in  other  manner,  because  he  is  not  accountable  for  this 
occupation."     I  Rol.  Abr.,  Accompt  (L),  pi.  5. 

8  The  subjects  of  larceny  and  embezzlement  furnish  good  illustrations  of  the  distinc- 
tion between  possession  and  custody.  One  cannot  be  convicted  of  larceny,  though  he 
may  be  convicted  of  embezzlement,  in  respect  to  property  of  which  he  has  the  legal  pos- 
session. On  the  other  hand,  one  cannot  be  convicted  of  embezzlement,  though  he  may 
be  convicted  of  larceny,  in  respect  to  property  of  which  he  has  the  mere  custody  as  the 
servant  of  the  owner.     Commonwealth  v.  Berry,  99  Mass.  428. 


8o  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

by  him.i  So  one  may  be  authorized  to  sell  and  convey  land,  and 
to  deliver  possession  of  it  to  the  purchaser,  without  ever  having 
possession  of  the  land  himself ;  and  yet  he  will  be  accountable  for 
the  proceeds  of  such  sale  if  he  be  authorized  to  receive  them 
into  his  possession  and  he  do  receive  them  accordingly.  In  such 
a  case,  however,  it  seems  that  the  obligation  to  account  does  not 
arise  until  the  proceeds  of  the  sale  are  received,  or  at  least  not  till 
the  sale  is  made. 

Lastly,  there  must  be  a  fiduciary  relation  between  the  plaintiff 
and  the  defendant,  or,  as  the  books  of  the  common  law  express 
it,  there  must  be  a  privity  between  them.  This  requirement  dis- 
poses at  once  of  all  cases  in  which  the  defendant  has  acquired  his 
possession  wrongfully,  or  in  assertion  of  a  right  to  the  posses- 
sion^2  or  even  without  the  plaintiff's  permission,  though  without 
any  wrongful  or  hostile  intention.^  If,  however,  he  obtain  pos- 
session on  the  plaintiff's  behalf,  and  as  his  representative,  though 
without  any  actual  authority,  the  plaintiff  may  adopt  and  ratify 
his  acts,  and  thus  establish  privity  between  him  and  the  plaintiff.* 
So  if  A  collect  a  debt  due  to  me,  it  has  been  held  that  I  may  elect 
whether  I  will  compel  the  debtor  to  pay  the  debt  to  me,  notwith- 
standing that  he  has  paid  it  to  A,  or  whether  I  will  adopt  the  act 
of  A,  and  compel  him  to  account  to  me  for  the  money  col- 
lected ;^  for,  though  A  has  received  the  money,  yet  he  has  not 

1  Though  a  bailiff  of  land  is  accountable  only  for  the  rents  and  profits  of  the  land, 
and  not  for  the  land  itself,  yet  it  is  not  necessary,  in  order  to  render  him  accountable, 
that  he  should  have  actually  received  rents  and  profits.  The  reason  is,  that  he  is  account- 
able, not  only  for  the  rents  and  profits  actually  received  by  him,  but  for  what,  with  reason- 
al'le  diligence,  he  might  have  received.  To  that  extent,  therefore,  a  bailiff  of  land  is  an 
exception  to  the  rule  that,  in  order  to  render  A  accountable  to  B,  he  must  have  received 
possession  of  property  belonging  to  B. 

2  Anon.,  I  Leon.  266. —  "  Account  does  not  lie  where  a  man  claims  the  property." 
Com.  Dig.,  Accompt  (D). 

3  Tottenham  v.  Bedingfield,  3  Leon.  24,  Owen,  35,  83. 

*"  Where  a  man  takes  upon  him  of  his  own  head  to  be  my  bailiff,  account  lies."  Bro. 
Abr.,  Accompt,  pi.  8.  "  If  a  man  claims  to  be  guardian  of  an  infant,  and  is  not,  and 
enters  a^nd  occupies,  action  of  waste  lies,  and  therefore  action  of  account,  as  it  seems; 
and  contra  where  he  enters  as  trespasser.  Note  a  difference."  Bro.  Abr.,  Accompt, 
pi.  93.  "  If  a  man  enter  into  my  land  to  my  use,  and  receive  the  profits  thereof,  I  shall 
have  an  account  against  him  as  bailiff."     F.  N.  B.  117  A. 

^  "If  a  man  receive  the  rent  due  from  my  lessee  for  life,  or  my  tenants,  account  lies 
against  him  as  receiver."  i  Rol.  Abr.,  Accompt  (H),  pi.  2.  "  If  a  man  receive  my 
rent  of  my  tenants  without  my  assent,  yet  I  shall  charge  him  by  the  possession  and  by 
the  receipt.  Per  Bryan,  C.  J.  And  so  see  that  never  his  receiver  to  render  account  shall 
not  serve  in  this  case  for  him."  Bro.  Abr.,  Accompt,  pi.  65;  1  Vin.  Abr.,  Account  (A), 
pi.  7,  note. 


A   BRIEF  SURVEY  OF  EQUITY  'JURISDICTION.  8 1 

done  any  wrong  to  me,  as  it  is  not  my  money  until  it  is  paid  to 
me ;  and  when  no  wrong  is  done  to  me,  I  may  make  a  privity  by 
my  consent. 1 

If  money  be  delivered  by  A  to  B  in  order  that  it  may  be  de- 
livered by  B  to  C,2  or  if  it  be  delivered  by  A  to  B  to  the  use  of 
C,^  it  has  often  been  held  that  B  will  be  accountable  to  C.  If, 
however,  he  fail  to  deliver  the  money  to  C,  he  will  be  accountable 
for  it  to  A. 4 

If  A  be  accountable  to  B,  and  B  be  accountable  to  C,  this  does 
not  make  A  accountable  to  C  for  want  of  privity.  Therefore,  if 
B  be  the  bailiff  or  receiver  of  C,  and  A  be  the  deputy  of  B,  A 
will  be  accountable  to  B  alone,  and  B  will  be  accountable  to  C,  just 
as  if  there  were  no  deputy.s 

The  privity  required  by  the  common  law  to  support  an  obliga- 
tion to  account  was  so  strictly  a  personal  relation  that  neither  the 
right  created  nor  the  duty  imposed  by  the  obligation  could  be 
transferred  even  by  an  act  of  law ;  and  hence,  upon  the  death  of 
the  obligee,  the  obligation  could  not  be  enforced  by  his  executor 
or  administrator  ;  and  upon  the  death  of  the  obligor,  the  obligation 
could  not  be  enforced  against  his  executor  or  administrator.     As 


1  Tottenham  v.  Bedingfield,  3  Leon.  2\,per  Manwood,  J. 

2  "  I  command  you  to  receive  my  rents  and  deliver  them  to  Lord  Dyer,  he  shall  have 
account  against  you;  yet  he  did  not  bail  the  money."  Per  Lord  Brooke,  in  Paschall  v. 
Keterich,  Dyer,  152,  note.  "  If  a  man  deliver  money  to  you  to  pay  to  me,  I  shall  have 
account  for  this  against  you."  i  Rol.  .\br.,  Accompt  (A),  pi.  6;  i  Vin.  Abr.,  Account 
(A),  pi.  6. 

'  "  A  man  shall  have  a  writ  of  account  against  one  as  bailiff  or  receiver,  where  he  was 
not  his  bailiff  or  receiver;  for  if  a  man  receive  money  for  my  use,  I  shall  have  an  account 
against  him  as  receiver;  or  if  a  man  deliver  money  to  one  to  deliver  over  to  me,  I  shall 
h.^^e  an  account  against  him  as  my  receiver."  F.  N.  B.  116  Q.  "  If  ;{J  10  be  paid  to 
W.  N.  to  my  use,  I  may  have  account  against  W.  N.  of  it."  Bro.  Abr.,  Accompt,  pi.  61. 
And  see  Cocket  v.  Robston,  3  Leon.  149,  Cro.  Eliz.  82. 

*  "  It  is  a  good  plea  that  it  was  delivered  to  deliver  over,  to  whom  he  hath  delivered 
it  accordingly,  because  he  was  never  accountable  for  it  but  conditionally;  namely,  if  he 
did  not  deliver  it  over."  I  Rol.  Abr.,  Accompt  (M),  pi.  2.  "  In  account  defendant  said 
they  were  bailed  to  him  to  bail  over  to  J.  S.,  which  he  had  done.  Plaintiff  said  that, 
after  the  delivery  to  defendant,  and  before  the  dehvery  over,  he  commanded  him  to  bail 
it  to  him;  and  a  good  replication  by  the  best  opinion;  for  by  the  delivery  to  the  defend- 
ant J.  S.  has  no  property  in  it,  and  therefore  plaintiff  may  countermand  it;  and  yet  by 
this  delivery  to  defendant,  J.  S.  may  have  account,  if  it  be  not  countermanded."  Bro. 
Abr.,  Replication,  pi.  65. 

*  F.  N.  B.  119  B;  I  Rol.  Abr.,  Accompt  (E),pl.  4;  The  Queen  and  Painter's  Case,  4 
Leon.  32;   s.  C,  nom.  Sir  W.  Pelham's  Case,  4  Leon.  114. 

6 


82  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

to  the  executor  or  administrator  of  the  obligee,  this  rule  was  ab- 
rogated by  early  statutes  ;i  but  as  to  the  executor  or  administrator 
of  the  obligor,  it  remained  in  force  until  the  passage  of  the  well- 
known  act^  for  the  amendment  of  the  law  in  1705.  It  seems, 
however,  that  equity  would  enforce  such  an  obligation  against  the 
executor  or  administrator  of  the  obligor  even  before  the  passage 
of  that  statute.3 

It  is  worthy  of  observation  that  while  the  obligation  to  account 
is  created  by  law,  yet  the  privity  without  which  such  an  obligation 
cannot  exist  is,  as  a  rule,  created  by  the  parties  to  the  obligation. 
There  are,  however,  exceptions  to  that  rule  ;  for,  in  the  case  of 
guardians,  the  privity  is  created  by  law, 4  and  in  one  class  of  cases 
it  is  created  by  the  statute  just  referred  to  ;  namely,  where  one  of 
two  joint-tenants,  or  tenants  in  common,  receives  "more  than  comes 
to  his  just  share  or  proportion." 

Such  then  being  the  facts  from  which  the  law  will  raise  an  obli- 
gation to  account,  the  next  question  is,  How  can  such  an  obligation 
be  enforced,  or  what  is  the  remedy  upon  such  an  obligation?  It 
is  obvious  that  the  only  adequate  remedy  is  specific  performance, 
or  at  least  specific  reparation.  An  action  on  the  case  to  recover 
damages  for  a  breach  of  the  obligation,  even  if  such  an  action 
would  lie,  would  be  clearly  inadequate,  as  it  would  involve  the 
necessity  of  investigating  all  the  items  of  the  account  for  the  pur- 
pose of  ascertaining  the  amount  of  the  damages,  and  that  a  jury 
is  not  competent  to  do.  In  truth,  however,  such  an  action  will 
not  lie.^  If,  indeed,  there  be  an  actual  promise  to  account, 
either  express  or  implied  in  fact,  an  action  will  lie  for  the 
breach  of  that  promise  ;  but  as  such  a  promise  is  entirely  col- 
lateral to  the  obligation  to  account,  and  as  therefore  a  recovery 
on  the  promise  would  be  no  bar  to  an  action  on  the  obligation,  it 
would  seem  that  nominal  damages  only  could  be  recovered  in  an 
action  on  the  promise,  or  at  most  only  such  special  damages  as 

1  Westm.  2  (13  Ed.   I.),  c.  23;    25  Ed.  HI.,  stat.  5,  c.  5;   31  Ed.  III.,  stat.  i,  c.  ii. 

"^  4  Anne,  c.  16,  s.  27. 

8  Co.  Litt.  90  b,  n.  5  (by  Hargrave) ;  Lee  v.  Bowler,  Cas.  /.  Finch,  125;  Holstcomb 
V.  Rivers,  i  Ch.  Cas.  127,  i  Eq.  Cas.  Abr.  5;  Burgh  v.  Wentworth,  Cary  (ed.  of 
1650),  54. 

*  "  To  maintain  an  action  of  account,  there  must  be  either  a  privity  in  deed  by  the 
consent  of  the  party,  for  against  a  disseisor,  or  other  wrongdoer,  no  account  doth  lie; 
or  a  privity  in  law,  ex proviiione  legis^  made  by  the  law,  as  against  a  guardian,  etc," 
Co.  Litt.  172  a. 

sSpurraway  v.  Rogers,  12  Mod.  517. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.  83 

the  plaintiff  had  suffered  by  the  breach  of  the  promise.^  Besides, 
the  first  instance  in  which  an  action  on  such  a  promise  was  sus- 
tained was  as  late  as  the  time  of  Lord  Holt,^  while  the  obligation 
to  account  has  existed  and  been  recognized  from  early  times. 

Accordingly,  the  common  law  provided  an  action  whose  sole 
object  was  the  enforcement  of  obligations  to  account,  namely,  the 
action  of  account  ;  and  the  relief  afforded  in  that  action  consisted 
in  compelling  the  defendant  to  account  with  the  plaintiff.  It  is 
true  that  this  is  a  kind  of  relief  for  whicK  the  machinery  and  the 
methods  of  the  common-law  courts  are  very  ill  fitted,  and  which, 
at  the  present  day,  they  never  attempt  to  give  ;  but  they  did 
attempt  it  in  early  times  in  the  instance  of  the  action  of  account, 
there  being  then  no  courts  of  equity.  The  action,  unlike  ordinary-^ 
actions  at  law,  consisted  of  two  stages.  The  object  of  the  first 
stage  was  to  ascertain  and  decide  whether  or  not  the  defendant 
was  bound  to  account  with  the  plaintiff  ;  and,  accordingly,  to  that 
point,  the  pleadings  were  directed.  The  declaration  charged  the 
defendant  with  being  the  plaintiff's  guardian,  bailiff,  or  receiver. 
The  defendant  might  either  deny  the  charge  {i.  e.,  deny  that  he 
had  ever  been  such  guardian,  bailiff,  or  receiver,  and  hence  that 
he  had  ever  incurred  an  obligation  to  account  with  the  plaintiff), 
or  he  might  plead  an  afifirmative  defence,  namely,  that  the  obliga- 
tion which  confessedly  once  existed  had  ceased  to  exist,  e.g.,  that 
it  had  been  extinguished  by  a  release,  or  that  it  had  been  per- 
formed by  an  actual  accounting  with  the  plaintiff.  This  latter 
defence  was  set  up  by  a  plea  of  plcne  compiitavit,  as  it  was  called, 
i.e.,  that  the  defendant  had  fully  accounted  with  the  plaintiff;  and 
to  establish  this  defence  the  defendant  must  show  that  he  and  the 
plaintiff  had  agreed  upon  all  the  items  of  the  account,  and  had 
struck  a  balance  ;  for  an  accounting  must  either  be  before  a  com- 
petent court,  or  by  the  act  and  agreement  of  the  parties. 

If  the  pleadings  resulted  in  an  issue  of  fact,  it  was  tried  by  a 
jury,  as  in  ordinary  cases  ;  if  in  an  issue  of  law,  it  was  tried  by 
the  court.  If  the  issue  was  decided  in  the  defendant's  favor,  a 
final  judgment  in  his  favor  was  rendered  ;  if  in  the  plaintiff's  favor, 
an  interlocutory  judgment  was  rendered,  namely,  that  the  defendant 
do  account,  quod  ccmiputet.  Upon  this  judgment  being  rendered, 
the  defendant,  unless  he  gave  bail,  was  committed  to  prison,  and 

1  Wilkyns  v.  Wilkyns,  Carth.  89. 
■^  Wilkyns  v,  Wilkyns,  supra. 


84  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

kept  in  prison  until  the  account  was  taken,  a  final  judgment 
rendered,  and  that  judgment  satisfied.^ 

The  account  was  taken  by  auditors  appointed  by  the  court, 
who  always  consisted  of  two  or  more  clerks  of  the  court.  The 
account  commonly  consisted  of  two  classes  of  items,  namely, 
items  of  charge  and  items  of  discharge.  The  former  consisted 
of  sums  of  money  received  by  the  defendant,  and  with  which 
he  was  consequently  chargeable.  The  latter  consisted  (besides 
charges  for  services)  of  sums  of  money  paid  out  by  the  de- 
fendant on  the  plaintiff's  account,  and  which  were  therefore  to 
be  allowed  to  the  defendant,  i.e.,  deducted  from  the  amount 
with  which  he  would  otherwise  be  chargeable.  The  theory 
of  these  items  of  discharge  was  that  they  were  paid  by  the  de- 
fendant, not  out  of  his  own  pocket,  but  out  of  the  money  in  his 
hands  belonging  to  the  plaintiff  ;  and  hence  they  did  not  constitute 
independent  claims  in  favor  of  the  defendant  and  against  the  plain- 
tiff, but  were  mere  items  in  the  account ;  and  the  only  way  in  which 
the  defendant  could  enforce  them  or  avail  himself  of  them,  was 
by  procuring  them  to  be  allowed  in  his  account.  And  this  was 
so,  even  though,  as  sometimes  happened,  the  defendant's  payments 
exceeded  his  receipts,  so  that  the  balance  was  in  the  defendant's 
favor ;  in  which  case  the  defendant  was  said  to  be  in  surplusage  to 
the  plaintiff.  This  would  seem  to  show  that  a  person  subject  to 
an  obligation  to  account,  who  had  authority  to  make  payments  on 
behalf  of  the  obligee,  was  entitled  to  bring  an  action  of  account 
against  the  latter,  alleging  that  there  was  a  balance  in  his  favor ; 
but  this  is  doubtful  upon  authority.^ 

If  the  money  or  other  property  for  which  the  defendant  was  ac- 
countable had  been  lost  without  his  fault,  he  was  not  liable  for  it  ; 
and  therefore  proof  that  it  had  been  so  lost  always  constituted  a 
good  account. 3 

When  a  proper  account  had  been  taken  by  the  auditors  and  de- 
livered into  court,  if  it  showed  a  balance  in  the  plaintiff's  favor,  a 
final  judgment  was  rendered  that  the  plaintiff  recover  such  balance  ; 
but  if  the  account  showed  a  balance  in  the  defendant's  favor,  all 
that  the  court  could  do  for  him  was  to  dismiss  him  with  costs;  it 

iRobsert  v.  Andrews,  Cro.  Eliz.  82;   Pierce  v.  Clark,  i  Lutw.  58. 

2  F.  N.  B.  116Q,  n.  (c). 

8  Vere  v.  Smith,  2  Lev.  5;    i  Ventr.  121. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  85 

could  not  render  a  judgment  that  he  recover  such  balance,  as  it 
could  render  such  a  judgment  only  in  favor  of  a  plaintiff.  Since, 
however,  the  taking  of  the  account  had  converted  the  balance  in 
the  defendant's  favor  into  a  debt,  the  defendant  could  enforce  pay- 
ment of  it  by  an  action  of  debt^  or  of  indebitatus  assumpsit. 

Are  there  any  other  common-law  actions  that  will  lie  upon 
an  obligation  to  account  ?  The  only  other  actions  which  it  has 
ever  been  supposed  would  lie  are  debt  and  indebitatus  assumpsit ; 
but  to  sustain  either  of  these  actions,  a  debt  is  indispensable ; 
and  to  say  that  an  obligation  to  account  can  ever  constitute 
a  debt  is  a  plain  contradiction.  An  obligation  to  account  may, 
indeed,  be  converted  into  a  debt  ;  and  when  that  is  done,  of 
course  debt  or  indebitatus  assumpsit  will  lie.  Thus,  if  a  defend- 
ant, having  money  in  his  hands  for  which  he  is  bound  to  account 
to  the  plaintiff,  appropriates  or  converts  such  money  to  his  own 
use,  the  plaintiff,  if  the  amount  of  the  money  be  definite  and 
certain,  so  that  no  account  is  necessary  to  ascertain  its  amount, 
may  adopt  and  sanction  the  defendant's  wrongful  act,  and  thus 
convert  the  defendant  into  a  debtor  ;  ^  and  it  seems  that  a  demand 
of  payment  by  the  plaintiff,  and  a  refusal  or  failure  to  pay  by  the 
defendant,  will  establish  a  conversion,  and  thus  enable  the  plaintiff, 
at  his  option,  to  maintain  debt  or  indebitatus  assumpsit.  In  this 
class  of  cases,  therefore,  the  misconduct  of  the  defendant  enables 
the  plaintiff  to  elect  between  holding  the  defendant  to  his  obliga- 
tion to  account,  and  converting  him  into  a  debtor. 

There  is  also  a  class  of  cases  in  which  the  obligor  has  an  elec- 
tion to  convert  an  obligation  to  account  into  a  debt,  namely,  the 
class  of  cases,  before  referred  to,  in  which  one  who  has  received 
specific  property,  for  which  he  is  accountable,  and  has  converted 
the  same  into  money,  is  entitled  to  appropriate  the  money  to  his 
own  use,  and  does  so.  In  such  cases,  however,  the  plaintiff  is  still 
entitled  to  enforce  the  obligation  to  account  for  the  purpose 
of  ascertaining  the  amount  for  which  the  defendant  is  liable, 
though  it    is  only  as   a  debt   that  he    can  enforce    payment  of  the 


1^  Gawton  v.  Lord  Dacres,  i  Leon.  219;  s.  c,  nom.  Lord  Dacres'  Case,  Owen,  23; 
Bro.  Abr.,  Accompt,  pi.  62,  Dette,  pi.  130,  182,  Ley  Gager,  pi.  62,  65. 

'^  Lamine  v.  Dorrell,  2  Ld.  Raym.  1216.  "  If  I  deliver  money  to  a  man  to  deliver 
over,  and  he  doth  not,  but  converts  the  money  to  his  own  use,  I  may  elect  to  have  an 
action  of  account  against  him,  or  an  action  on  my  case;  but  a  stranger  hath  no  other 
remedy  than  an  action  of  account."  Per  Frowyk,  C.  J.  Anon.,  Keilw.  77  a,  77  b,  pi. 
25,  Mich.  21  H.  7. 


86  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

amount  which  the  defendant  has  rightfully  appropriated  to  his  own 
use. 

Of  course  both  parties  to  an  obligation  to  account  may  always 
convert  such  obligation  into  a  debt,  by  agreeing  that  the  obligor 
shall  retain,  as  his  own,  the  property  for  which  he  is  accountable, 
and  in  exchange  for  it  shall  become  indebted  to  the  obligee  in  an 
agreed  amount.  In  this  way  the  obligation  to  account  is  wholly 
extinguished,  and  hence  the  obligee  can  never  bring  any  action  of 
account.  Moreover,  the  parties  often  bring  about  this  result  with- 
out any  actual  intention  to  do  so,  namely,  by  settling  the  account 
between  them,  and  striking  a  balance ;  for  in  this  way  the  obliga- 
tion to  account  is  completely  performed  and  extinguished ;  and  if 
an  action  of  account  be  afterwards  brought  upon  it,  such  action 
may  be  defeated  by  the  plea  of  plene  computavit.  The  balance 
therefore  necessarily  becomes  a  debt,  and  can  be  recovered  only 
as  such.  In  ancient  times  such  a  balance  was  recovered  by  an 
action,  called  an  action  of  debt  for  the  arrearages  of  an  account. 
In  modern  times  it  may  be  recovered  ^  by  an  action  of  debt  or  of 
indebitatus  assumpsit  upon  an  insimul  compiitasscnt  or  account 
stated. 

All  the  foregoing  observations  are,  as  will  be  seen,  entirely  con- 
sistent with  the  rule,  that  an  obligation  to  account  will  support  no 
common-law  action,  except  an  action  of  account  ;  and  that  rule  is 
believed  to  be  subject  to  no  exception  whatever. 

Undoubtedly,  the  distinction  between  a  debt  and  an  obligation 
to  account  is  one  which  there  is  some  danger  of  losing  sight  of, 
and  this  danger  has  been  much  increased  by  the  disuse  of  the 
action  of  account.  Moreover,  this  distinction  has  been  much  ob- 
scured by  the  prevalence  of  the  indebitatus  count  in  assumpsit  for 
money  had  and  received.  That  count,  indeed,  seems  to  have  been 
framed  in  entire  forgetfulness  that  any  such  distinction  existed, 
for  it  alleges  a  legal  impossibility,  namely,  that  the  defendant  is 
indebted  to  the  plaintiff  for  money  had  and  received  by  the  de- 
fendant to  the plai7itiff' s  use.  If,  in  truth,  the  defendant  is  indebted 
to  the  plaintiff  for  money  had  and  received  by  the  defendant,  it 
follows  that  the  money  was  received  by  the  defendant  to  his  own 
use  ;  and  if  the  money  was  in  truth  received  by  the  defendant  to 
the  plaintiff's  use,  it  follows  that  it  is  the  plaintiff's  money,  and 
that  the  defendant  is  accountable  for  it.  And  yet  this  inconsistency 
in  the  language  of  the  count  has  never  attracted  attention.     Less 


A   BRIEF  SURVEY  OF  E(2UITY  JURISDICTION.  87 

mischief,  however,  has  resulted  from  it  than  might  have  been  antici- 
pated ;  for  English  lawyers,  acting  with  their  usual  practical  good 
sense,  have  treated  the  count  as  alleging  an  indebtedness  for  money 
had  and  received,  and  the  words  "to  the  plaintiff's  use"  have 
been  disregarded.  Much  looseness  of  ideas  prevailed,  indeed,  dur- 
ing the  time  of  Lord  Mansfield,  and  doubtless  the  instances  have 
been  numerous  since  his  time  in  which  assumpsit  for  money  had 
and  received  has  been  allowed  where  account  was  the  only  proper 
action.  The  distinction  between  these  two  actions  ha.s,  however, 
generally  been  recognized  and  maintained  whenever  attention  has 
been  properly  called  to  it,  and  especially  whenever  substantial 
rights  depended  upon  it.  Thus  in  Lincoln  v.  Parr,^  the  court 
"declared  their  opinion  that  no  evidence  of  account  will  maintain 
indebitatus,  as  on  money  delivered  to  a  factor,  who  often  have  dis- 
charges of  greater  value,  and  so  involve  the  court,  which  they  will 
not  allow  "  ;  "  and  it  was  said  so  to  be  ruled  in  Guildhall  last  sit- 
ting." In  Sir  Paul  Ncal's  Case,^  it  was  decided  by  all  the  judges  of 
England  that  case  would  not  lie  against  a  bailiff,  where  allowances 
and  deductions  are  to  be  made,  unless  the  account  had  been  ad- 
justed and  stated;  and  in  Farrington  v.  Lee  ^  the  same  doc- 
trine was  held  in  regard  to  a  factor ;  and,  in  the  latter  case.  North, 
C.  J.,  said,*  "  If,  upon  an  indebitatus  assumpsit,  matters  are 
offered  in  evidence  that  lie  in  account,  I  do  not  allow  them  to  be 
given  in  evidence."  In  Anonymous,^  Powell,  J.,  having  said, 
"  If  I  give  money  to  another  to  buy  goods  for  me,  and  he  neglects 
to  buy  them,  for  this  breach  of  trust  I  shall  have  election  to  bring 
debt  or  account,"  Holt,  C.  J.,  answered,  "  If  the  party  did  not 
take  it  as  a  debt,  but  ad  comptctandum  or  ad  mcrcJiandisanduni,  it 
must  be  an  account,  and  he  shall  have  the  benefit  of  an  account- 
ant ;  which  is,  he  may  plead  being  robbed,  which  shall  be  a  good 
plea  in  the  last  case,  but  not  in  the  first."  In  Poulter  v.  Corn- 
wall ^  it  was  virtually  admitted  by  the  court  that  a  count  in  indebi- 

1  2  Keb.  7S1. 

2  Cited  by  North,  C.  J.,  in  Farrington  v.  Lee,  Freem.  230. 
8  I  Mod.  26S,  2  Mod.  311,  Freem.  229,  234,  242. 

*  I  Mod.  268,  270. 

^  II  Mod.  92. 

6  I  Salk.  9.  Though  the  decision  in  this  case  was  in  the  plaintiffs  favor,  yet  it  was 
rendered  on  a  motion  in  arrest  of  judgment,  and  was  based  entirely  on  the  ground  that 
the  declaration  was  cured  by  the  verdict,  "  for  it  must  be  intended  there  was  proof  to  the 
jury  that  the  defendant  refused  to  account,  or  had  done  somewhat  else  that  had  rendered 
him  an  absolute  debtor." 


88  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

tatus  ass7nnpsit  for  money  had  and  received  by  the  defendant  ad 
computanduvi  was  bad  on  demurrer.  Finally,  in  Thomas  v. 
Thomas  1  it  was  held,  upon  great  consideration,  that  indebi- 
tatus assumpsit  for  money  had  and  received  would  not  lie  by  one 
tenant  in  common  against  his  co-tenant,  to  recover  the  plaintiff's 
share  of  rents  received  by  the  defendant  for  the  land  held  in  com- 
mon. In  order  to  appreciate  the  force  of  this  decision,  it  must  be 
borne  in  mind  that  the  plaintiff  would  have  had  no  remedy  at  all  at 
common  law,  unless  he  had  appointed  the  defendant  as  his  bailiff 
of  his  share  of  the  land  ;  that,  without  such  an  appointment,  not 
even  an  action  of  account  would  have  lain,  for  want  of  privity  ; 
but  that  the  want  of  privity  had  been  supplied  by  statute,^ 
and  hence  that  the  defendant  was  liable  as  the  plaintiff's  bailiff, 
just  as  if  he  had  been  actually  appointed.  The  decision  was,  there- 
fore, to  the  effect  that  indebitatus  assumpsit  for  money  had  and 
received  will  not  lie  against  a  bailiff  to  recover  money  received  by 
him  as  bailiff. 

Allowing  indebitatus  assumpsit  ior  money  had  and  received  to  lie 
upon  an  obligation  to  account,  involves  one  of  two  false  assump- 
tions, namely,  either  that  such  an  obligation  constitutes  a  debt,  or 
that  such  an  action  will  lie,  though  there  be  no  debt.  If  the  first 
assumption  be  made,  the  defendant  will  be  deprived  of  the  de- 
fence that  the  fund  has  been  lost  without  his  fault  ;  and  he  will 
also  be  deprived  of  the  defence  that  the  fund,  or  some  portion  of 
it,  has  been  expended  by  the  defendant  for  the  plaintiff  and  by 
the  plaintiff's  authority  ;  unless  another  false  assumption  be  made, 
namely,  that  money  paid  by  the  defendant  out  of  the  fund  consti- 
tutes a  debt  in  his  favor,  and  so  a  defence  by  way  of  set-off  or 
counter-claim.  If  the  false  assumption  be  made  that  ijidebitatus 
assumpsit  for  money  had  and  received  will  lie  upon  an  obligation 
to  account,  though  such  an  obligation  constitute  no  debt,  that  is 
equivalent  to  saying  that  such  action  shall  be  allowed  to  perform 
the  function  of  an  action  of  account,  or  of  a  bill  in  equity  for  an 
account.  If  the  reader  ask  why  not,  and  be  not  satisfied  with  the 
answer  that  to  allow  this  would  be  to  allow  a  plaintiff  who  has 
alleged  one  thing  to  recover  upon  proving  a  wholly  different 
thing,    it    may  be  added,  first,  that  nothing  whatever  would  be 

1  5  Exch.  28. 

2  4  Anne,  ch.  16,  s.  27. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  89 

gained  by  such  a  perversion  of  remedies ;  that  the  action  of 
account  eventually  proved  a  failure,  not  because  it  was  badly 
or  defectively  constructed,  but  because  it  attempted  to  accom- 
plish what  was  beyond  the  powers  of  common-law  courts  ;  sec- 
ondly, that  the  enforcement  of  an  obligation  to  account  necessarily 
involves  two  successive  stages  of  litigation,  with  two  sets  of  plead- 
ings and  two  trials  ;  and  that  only  the  first  of  the  two  trials  is 
before  a  jury,  even  at  common  law,  the  second  being  before  judi- 
cial officers,  namely,  before  auditors.  To  attempt,  therefore,  to 
enforce  such  an  obligation  by  an  action  which  has  but  one  stage 
of  litigation,  but  one  set  of  pleadings,  and  but  one  trial,  would  be 
not  only  to  involve  the  court  in  incredible  confusion  in  point  of 
procedure,  but  to  compel  the  defendant  to  account  before  an  in- 
competent and  illegal  tribunal,  namely,  a  jury.  Yet  this  seems 
to  have  been  the  idea  of  Lord  Mansfield,  if  we  may  judge  from  the 
case  of  Dale  v.  Sollet.^ 

The  next  question  is,  What  is  the  jurisdiction  of  equity  over 
obligations  to  account  ?  The  action  of  account  seems  to  have 
proved  a  failure  before  any  regular  system  of  equity  was  estab- 
lished. Certainly  equity  never  regarded  that  action  as  an  ade- 
quate remedy,  and  therefore  it  always  permitted  an  obligation  to 
account  to  be  enforced  by  bill.  At  first,  therefore,  and  for  a  long 
time,  courts  of  equity  had  (what  is  improperly  called)  a  concur- 
rent jurisdiction  with  courts  of  law  over  obligations  to  account. 
Actions  of  account  were  for  a  time  revived  to  some  extent  in 
England  during  the  present  century,  but,  with  that  exception,  they 
have  been  constantly  on  the  decline ;  and  now,  so  far  as  the 
writer  is  aware,  they  are  everywhere  either  abrogated  or  wholly 

^  4  Burr.  2133.  The  defendant  in  this  case  had  collected;^ 2,000  for  the  plaintiff  as  the 
plaintiff's  agent,  and  he  had  paid  over  to  the  plaintiff  all  hut  ^40,  which  he  claimed  to  re- 
tain as  a  compensation  for  his  services.  This  latter  sum  the  plaintiff  sought  to  recover  in 
an  action  of  assumpsit  for  money  had  and  received.  The  defendant  having  pleaded  only 
the  general  issue,  the  plaintiff  objected  that,  upon  that  issue,  the  defendant  could  not 
avail  himself  of  his  right  of  retainer,  but  that  he  should  have  pleaded  his  claim  for  ser- 
vices as  a  set-off.  This  objection,  however,  was  overruled,  Lord  Mansfield  saying  :  "The 
plaintiff  can  recover  no  more  than  he  is  in  conscience  and  equity  entitled  to :  which  can 
be  no  more  than  what  remains  after  deducting  all  just  allowances  which  the  defendant 
has  a  right  to  retain  out  of  the  very  sum  demanded.  This  is  not  in  the  nature  of  a  cross- 
demand  or  n  utual  debt :  it  is  a  charge,  which  makes  the  sum  of  money  received  for  the 
plaintiff's  use  so  much  less."  There  is  but  one  criticism  to  be  made  upon  this  very  char- 
acteristic language,  namely,  that  the  action  was  indebitatus  assumpsit,  —  not  account. 


go  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

obsolete.  Obligations  to  account  now  therefore  furnish  an 
instance  of  an  important  legal  right  with  no  legal  remedy  what- 
ever, and  hence  the  sole  remedy  is  in  equity.  A  bill  in  equity  for 
an  account,  therefore,  is  simply  a  substitute  for  the  action  of 
account. 

The  proceedings  upon  a  bill  for  an  account  are  similar,  in  their 
main  outline,  to  those  in  an  action  of  account.  Of  course  there 
are  all  those  differences  which  distinguish  all  proceedings  in  a  suit 
in  equity  from  those  in  an  action  at  law,  but  such  differences  do 
not  require  to  be  noticed  here.  The  question  whether  the  defend- 
ant is  bound  to  account  is,  of  course,  heard  by  a  judge,  instead 
of  being  tried  by  a  jury.  If,  however,  this  question  should  be 
found  to  turn  upon  controverted  facts,  it  would  seem  to  be  the 
right  of  either  party  to  have  it  sent  to  a  court  of  law  to  be  tried  by 
a  jury.^  If  it  be  decided  that  the  defendant  shall  account,  the 
cour  akes  a  decree,  referring  the  cause  to  a  master  to  take  the 
account,  instead  of  appointing  auditors  as  at  law. 

If,  upon  the  accounting,  the  defendant  be  found  to  be  in  sur- 
plusage to  the  plaintiff,  he  is  entitled  to  a  decree  against  the 
plaintiff  for  the  balance  due  to  him.  This  is  upon  the  same 
principle  upon  which  the  defendant  may  have  a  decree  in  his 
favor  upon  a  bill  for  specific  performance,  and  which  has  been 
already  explained.^  It  would  seem  to  follow,  therefore,  that  a 
person  subject  to  an  obligation  to  account,  and  who  claims  to  be  in 
surplusage  to  the  obligee,  may  himself  file  a  bill  against  the  obligee 
to  have  his  accounts  taken,  and  to  have  a  decree  for  the  payment 
of  such  balance  as  shall  be  found  to  be  due  to  him  \^  for  other- 
wise he  would  seem  to  be  without  remedy,  in  case  the  obligee  do 
not  choose  to  file  a  bill. 


1  Note  to  Holstcomb  v.  Rivers,  I  Eq.  Cases  Abr.  5. 

2  See  supra,  pages  46,  47. 

^  There  is,  however,  a  singular  dearth  of  authority  upon  the  proposition  stated  in  the 
text.  In  Dinvviddie  v.  Bailey,  6  Ves.  136,  the  plaintiff's  counsel  said  (p.  139)  :  "  There 
have  been  many  bills  of  this  nature  [/.<?.,  bills  for  an  account]  by  stewards  for  an  account 
between  them  and  their  employers,  as  to  receiving  rents  and  paying  sums  of  money. 
The  defendants  must  make  out  that  the  court  will  not  entertain  a  bill  for  an  account  at 
the  suit  of  an  accounting  party."  Though  the  decision  was  against  the  plaintiff,  and 
though  no  authority  was  cited  in  support  of  the  statement  that  there  had  been  many  bills 
for  an  account  by  stewards,  yet  the  accuracy  of  that  statement  was  not  questioned  either 
by  Lord  Eldon  or  by  the  defendant's  counsel. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  91 

A  defendant  to  a  bill  for  an  account,  as  well  as  a  defendant  in  an 
action  of  account,  may  account  fully  by  showing  that  all  the 
property  for  which  he  was  accountable  has  been  sold,  and  its 
proceeds  received  ;  that,  upon  receiving  such  proceeds,  he  was 
entitled  to  appropriate  them  to  his  own  use,  debiting  himself  and 
crediting  the  plaintiff  with  their  amount,  and  that  he  did  so  ;  but 
the  consequences  of  such  an  accounting  upon  a  bill  for  an  account 
are  different  from  what  they  are  in  an  action  of  account  ;  for, 
while  in  the  latter,  as  we  have  seen,  the  plaintiff  can  obtain  noth- 
ing but  the  accounting,  and  must  bring  a  separate  action  of  debt 
or  indebitatus  assumpsit  to  recover  the  debt,  upon  the  former,  the 
accounting  will  be  followed  up  by  a  decree  for  the  payment  of  the 
debt  ;  and  this  is  done  for  the  purpose  of  avoiding  a  multiplicity  of 
actions,  equity  never  sending  a  plaintiff  to  a  court  of  law  to  finish 
what  equity  has  begun. 

It  remains  to  inquire  against  what  classes  of  persons  iHi^ll  for 
an  account  will  lie.  The  two  most  ancient  as  well  as  most  typical 
classes  are  guardians  (including  committees  of  lunatics  and  other 
persons  of  unsound  mind),  and  agents,  stewards,  or  bailiffs  of 
landed  estates.i  Bills  against  the  first  of  these  'two  classes  are 
much  less  common  in  this  country  than  in  England,  as  such  per- 
sons in  this  country  more  frequently  settle  their  accounts  in 
probate  courts  or  in  other  inferior  and  local  courts.  Bills  against 
the  second  class  of  persons  are  also  much  less  numerous  in  this 
country  than  in  England,  because  such  persons  are  themselves 
much  less  numerous.  In  England,  much  the  greater  part  of  all 
the  landed  property  in  the  kingdom  is  managed  by  such  agents. 
They  reside  upon  the  estate  for  which  they  are  agent,  have  an 
office  or  counting-house,  keep  a  set  of  books,  and  represent  the 
owner  of  the  estate  in  all  business  transactions  between  him  and 
his  tenants.  As  agents  they  keep  an  account  with  their  banker,  to 
the  credit  of  which  they  deposit  all  rents  collected  from  the  ten- 
ants of  the  estate,  and  against  which  they  draw  cheques  in  pay- 
ment of  all  expenses  incurred  on  behalf  of  the  estate.  What 
remains  represents  the  net  income  of  the  estate,  and  of  course 
belongs  to  the  owner  of  the  estate  ;  and  any  mixing  by  such  agents 
of  the  owner's  money  with  their  own  is  a  fraud  on  their  part.^ 

1  Makepeace  v.  Rogers,  4  De  G.,  J.  &  S.  649. 

2  See  Salisbury  v.  Cecil,  i  Cox,  277. 


92  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

The  largest  and  most  important  class  of  persons,  however, 
against  whom  bills  for  an  account  will  lie,  are  agents  who  make  it 
their  business,  or  at  least  a  part  of  their  business,  to  receive  the 
property  of  others  into  their  possession  for  the  purpose  of  selling  it, 
and  who  are  paid  for  their  services  by  a  fixed  commission  on  the 
proceeds  of  sales  made  by  them.  Agents  of  this  class  comprise, 
not  only  factors  or  commission  merchants,^  but  auctioneers^  (/.  e., 
when  they  receive  into  their  own  possession  the  property  to  be 
sold  by  them),  stock-brokers  ^  {i.e.,  when  employed  to  sell  stocks, 
shares,  or  securities),  bill-brokers  or  note-brokers,'^  employed  to 
sell  bills  of  exchange  or  promissory  notes,  and  book-publishers  ^ 
(/.  e.,  when  they  publish  a  book  for  its  author,  and  sell  it  for  him 
on  commission). 

It  may  be  regarded  as  clear  that  all  agents  of  the  kind  just 
referred  to  have  a  right,  when  they  receive  the  proceeds  of  property 
sold  by  them,  to  appropriate  such  proceeds  to  their  own  use,  deb- 
iting themselves  and  crediting  their  principals  with  the  amount 
so  received  and  appropriated.^  The  business  of  such  agents  is 
uniformly  conducted  on  the  theory  that  they  have  such  a  right, 
ard  it  would  not  be  practicable  for  them  to  conduct  it  on  the  op- 
posite theory ;  for  if  they  were  bound  to  regard  the  proceeds  of  all 
goods  sold  by  them  as  belonging  to  the  owner  of  the  goods,  it 
would  be  necessary  for  them  to  open  a  separate  bank-account  for 
every  customer.  This  right,  however,  is  strictly  personal  to  the 
agent,  and  he  may  refrain  from  exercising  it  if  he  choose.  It  can- 
not be  said,  therefore,  as  matter  of  law,  that  the  proceeds  of  every 

^  Mackenzie  v.  Johnston,  4  Madd.  373. 

2  Commonwealth  v.  Stearns,  2  Met.  343. 

8  It  seems  therefore  that,  in  King  z/.  Rossett,  2  Y.  &  J.  33,  the  plaintiff  was  entitled  to 
an  account  of  the  stock  sold  by  the  defendants  for  him.      See  infra,  n.  6. 

*  Commonwealth  v.  Foster,  107  Mass.  221. 

6 It  seems  therefore  that,  in  Barry  v.  Stevens,  31  Beav.  25S,  the  plaintiff  was  entitled 
to  an  account.  In  that  case,  as  in  King  v.  Rossett,  supra,  if  there  was  thought  to  have 
been  no  good  reason  for  filing  the  bill,  the  court  could  have  met  the  justice  of  the  case 
by  requiring  the  plaintiff  to  pay  costs.  In  each  case,  the  plaintiff's  chief  object  probably 
was  to  obtain  an  injunction  against  an  action  at  law  brought  by  the  defendant  to  recover  a 
balance  claimed  to  be  due  to  him;  and  clearly  the  plaintiff  was  not  entitled  to  that  in 
either  case. 

6  Scott  V,  Surman,  Willes,  400;  V)\xmz.%,  ex  parte,  i  Atk,  232,  234;  Kirkham  z/. 
Peel,  44  L.  T.  Reports,  N.  s.,  195;  Coniaionwealth  v.  Stearns,  2  Met.  343.  A  different 
view  was  expressed  by  Lord  Cottenham,  fli  Foley  v.  Hill,  2  H.  L.  Cas.  28,  35,  but  it  was 
entirely  obiter. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  93 

sale  made  by  such  agent  become  ipso  facto  the  property  of  the 
agent  the  moment  they  are  received  by  him.  Still,  there  is  a 
presumption  that  they  do,  because  there  is  a  presumption  that  the 
agent  exercises  his  right  of  making  them  his  own.  Consequently 
the  principals  of  such  agents  have  a  choice  of  two  remedies  for 
recovering  the  proceeds  of  their  property  sold  by  their  agents  ; 
namely,  a  bill  in  equity  for  an  account  of  the  property  sold,  or  an 
action  of  debt  or  indebitatus  assumpsit  for  the  recovery  of  the 
debt.^  If  there  is  a  controversy  as  to  the  amount  which  the  prin- 
cipal is  entitled  to  receive,  the  former  is  the  proper  remedy  ;  if 
there  is  not,  the  latter  is  abundantly  sufficient. 

What  is  said  in  the  preceding  paragraph,  however,  has  no  ap- 
plication to  an  agent  who  is  specially  employed  to  sell  property, 
and  not  as  a  part  of  his  regular  business  ;  for  such  an  agent  is  ac- 
countable for  the  proceeds  of  the  property  sold  as  well  as  for  the 
property  itself.^  ^ 

A  stock-broker  who  is  employed  to  buy  stocks,  shares,  or 
securities  is  not  accountable  to  his  customer  for  the  money  re- 
ceived by  him  for  the  latter  ;  for  the  course  of  business  is  for  the 
broker  to  buy  in  his  own  name  and  on  his  own  credit  and  respon- 
sibility, and  to  debit  his  customer  with  the  price  ;  and  then,  when 
the  money  is  received  from  the  customer,  the  latter  is  credited 
with  the  amount  received.  And  even  if  the  customer  furnish  the 
money  in  advance  of  the  purchase,  yet  the  course  of  business  is 
the  same,  i.e.,  the  broker  credits  the  customer  with  the  amount 
received  from  the  latter,  and  when  the  purchase  is  made,  he  debits 
him  with  the  price  ;  so  that  the  relation  between  the  two  is  never 
any  other  than  that  of  debtor  and  creditor. 

When  a  book  is  published  and  sold  by  the  publisher  on  his 
own  account,  under  an  agreement  by  him  with  the  author  to  pay 
the  latter  either  a  fixed  sum  for  every  copy  sold,  or  a  fixed  per- 
centage of  the  gross  proceeds  of  sales,  the  publisher  is  not 
accountable  to  the  author,  for  the  books  sold  (and  hence  their  pro- 
ceeds) are  the  property  of  the  publisher — not  of  the  author;  and 
the  money  payable  to  the  latter  is  merely  the  price  of  his  copy- 
right in  the  books  sold.  The  relation,  therefore,  between  the  pub- 
lisher and  the  author  in  such  a  case  is  merely  that  of  debtor  and 
creditor.     The  same  is   true  also  of  a  manufacturer  who  works  a 

1  Wells  z/.  Ross,  7  Taunt.  403. 

2  Coqunonwealth  v.  Foster,  107  Mass,  221. 


94  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

patent,  under  an  agreement  with  the  patentee  to  pay  him  a  royalty 
on  all  the  patented  articles  manufactured  and  sold.^  If  indeed 
the  author  or  the  patentee  were  by  the  agreement  entitled  specifically 
to  a  share  of  the  net  proceeds  of  sales,^  he  would  be  a  co-owner  of 
such  net  proceeds  with  the  publisher  or  manufacturer,  and,  as  the 
agreement  would  establish  a  fiduciary  relation  between  the  former 
and  the  latter,  the  former  would  be  entitled  to  an  account  and  pay- 
ment of  his  share. 

An  insurance  broker,  according  to  the  practice  at  Lloyds,  is  not 
accountable  to  his  principal  for  money  received  by  him  from 
underwriters  in  payment  of  losses  ;  for  the  broker  effects  all  insur- 
ances on  his  own  responsibility,  crediting  the  underwriters  and  deb- 
iting the  assured  with  the  amount  of  the  premiums ;  and,  when  a 
loss  happens,  he  debits  the  underwriters  and  credits  the  assured 
with  its  amount.  The  broker  therefore  deals  as  a  principal  both 
with  the  underwriter  and  with  the  assured,  and  his  relation  with 
each  is  simply  that  of  debtor  and  creditor  ;  and  the  underwriter  and 
the  assured  are  strangers  to  each  other.^ 

The  relation  between  a  banker  and  his  customers  is  so  plainly 
that  of  debtor  and  creditor,  that  one  is  surprised  at  finding  that 
the  former  was  ever  supposed  to  be  accountable  to  the  latter ;  and 
yet  a  case  was  carried  to  the  House  of  Lords  mainly  on  that 
question.*  Money  deposited  by  a  customer  with  his  banker  must 
either  become  the  banker's  own  money  or  it  must  be  a  special 
deposit  in  his  hands  ;  and  in  neither  case  would  the  banker  be 
accountable  for  the  money,  for  in  the  one  case  he  would  be  a  mere 
debtor,  and  in  the  other  he  would  be  a  mere  bailee. 

Co-owners  of  property  as  such  are  not  accountable  to  each  other. 
Before  the  statute  of  4  Anne,  c.  16,  s.  27,  if  land,  owned  {e.  g.)  by 
two  persons  in  equal  but  undivided  shares,  was  under  lease,  and 
one  of  them  received  all  the  rent  without  the  authority  of  the 
other,  the  other  had  no  remedy  at  law,  for  want  of  privity ;  and, 
though  he  had  a  remedy  in  equity,  it  was  by  a  bill  in  the  nature 
of  a  bill  for  partition,  and  not  by  a  bill  for  an  account.  If  he 
received  the  other's  share  of  the  rent  by  his  authority  and  appoint- 
ment, he  was  bound  to  account  for  it  to  the  latter  as  the  latter's 

1  Moxon  V.  Bright,  L.  R.  4  Ch.  292. 

2  Such  was  the  fact  in  the  late  case  of  Pratt  v.  Tattle,  136  Mass.  233. 
8  Dinwiddie  v.  Bailey,  6  Ves.  136. 

*  Foley  V.  Hill,  2  H.  L.  Cas.  28. 


A    BRIEF  SURl'EV  OF  EQUITY  JURISDICTION.  95 

bailiff.  If  the  property  was  not  under  lease,  and  one  of  the  co- 
owners  alone  occupied  it,  he  mit^ht  occupy  the  other's  share  as 
his  bailiff,  or  he  might  occupy  alone,  simply  because  the  other  did 
not  occupy,  or  he  might  exclude  the  other.  In  the  first  of  these 
cases,  the  one  occupying  was  bound  to  account  with  the  other  as 
his  bailiff  for  the  profits  of  the  other's  half  of  the  property.^  In 
the  second  case,  the  one  occupying  was  not  liable  to  the  other  in 
any  way,  either  at  law  or  in  equity.^  He  was  not  accountable  to 
the  other,  not  only  for  want  of  privity  between  them,  but  also  be- 
cause he  had  received  nothing  belonging  to  the  other.  In  the 
third  case,  the  one  occupying  was  liable  to  the  other  for  a  tort, 
but  of  course  he  was  not  accountable  to  him.  In  only  two  of  the 
five  cases  just  stated,  therefore,  could  either  an  action  of  account  or 
a  bill  for  an  account  be  maintained  before  the  statute.  In  which  of 
the  other  three  cases  did  the  statute  enable  the  action  and  the  bill 
to  be  maintained.?  Only  in  the  first  of  the  five.  Why  in  that? 
Because  the  only  obstacle  before  the  statute  was  want  of  privity, 
and  that  obstacle  was  removed  by  the  statute.^  Why  not  in  the 
last  but  one  of  the  five  }  Because  in  that  case  there  was  an  addi- 
tional obstacle  which  was  not  removed  by  the  statute,  namely,  that 
the  defendant  had  received  nothing  belonging  to  the  plaintiff,  and 
hence  that  he  had  not,  in  the  words  of  the  statute,  received  more 
than  came  to  his  just  share  or  proportion.^ 

If  one  of  two  co-owners  of  property  authorize  the  other  to  sell 
his  share  and  receive  the  proceeds  of  the  sale,  and  the  latter  do 
so,  of  course  he  will  be  accountable  to  the  former  for  the  share 
sold  ;  and  the  case  will  not  be  altered  if  the  one  who  receives  the 
authority  sells  the  entire  interest  in  the  property,  /.  e.,  his  own 
share  as  well  as  the  other's  share ;  for  he  will  then  make  the  sale 
in  two  capacities,  i.  e.,  he  will  sell  his  own  share  as  owner  and  the 
other's  share  as  the  other's  agent.  It  is  on  this  principle  that, 
when  a  merchant  in  one  country  consigns  goods  to  a  merchant  in 
another  country  to  be  sold  on  the  joint  account  of  the  consignor 

litis  on  this  principle  that  the  managing  owner  of  a  vessel  (called  the  ship's  husband) 
is  accountable  to  his  co-owners.  Maclachlan,  Merchant-Shipping  (2d  ed.),  175;  t)avis 
V.  Johnston,  4  Sim.  539. 

2 "Two  joint- tenants;  the  one  takes  the  whole  profits;  no  remedy  for  the  other,  ex- 
cept it  were  done  by  agreement  or  promise  of  account."  Anon,,  Cary  (ed.  of  1S20),  p. 
29,  June  8,  1602,  44  Eliz. 

8  See  Thomas  v.  Thomas,  5  Exch.  28, 

^Eason  v.  Henderson,  12  C^.  U.  9S6,  17  Q.  B.  701;  M'Mahon  v.  Burchell,  2  Ph.  127. 


96  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

and  the  consignee,  the  latter  is  accountable  to  the  former  for  the 
former's  share  of  the  goods.  Such  a  transaction  is  commonly 
known  as  a  joint  adventure.  The  consignee  acts  for  himself  as  to 
his  own  share  of  the  goods,  and  as  the  other's  factor  as  to  the 
other's  share.-^ 

If  one  of  two  co-owners  of  property  sell  the  property  without 
any  authority  from  the  other,  the  sale  will  be  effective  as  to  his 
own  share  only  (and  hence  the  other  co-owner  will  not  be  affected 
by  the  sale),^  unless  the  property  be  of  a  kind  which  passes  by 
delivery,  and  as  to  which  possession  proves  ownership,  e.  g.,  money 
or  negotiable  securities.  If  the  property  be  of  this  latter  kind, 
and  hence  the  title  of  the  other  co-owner  is  devested  by  the  sale, 
he  will  be  entitled  to  the  same  share  of  the  proceeds  of  the  sale 
that  he  had  in  the  property  before  the  sale  ;  and,  therefore,  he  can 
maintain  a  bill  for  a  division  of  such  proceeds  ;  but  he  cannot, 
even  in  that  case,  maintain  a  bill  for  an  account  for  want  of  privity, 
the  statute  of  4  Anne,  c.  16,  s.  27,  being,  it  seems,  not  applicable 
to  such  a  case.^ 

Copartners  differ  from  co-owners  in  this  respect,  among  others, 
that,  while  one  of  two  co-owners  is  sometimes  accountable  to  the 
other,  one  of  two  copartners  never  is.  The  reader  may  be  sur- 
prised at  this  statement,  but  it  is  believed  to  be  strictly  true.* 

iRackwell  v.  Eastman,  Cro.  Jac.  410,  1  Rul.  Rep.  421;  i  Vin.  Abr.,  Account  (E), 
pi,  2,  note.  In  such  cases  the  consignor  often  incurs,  in  the  first  instance,  the  entire  ex- 
pense of  the  consignment,  purchasing  the  goods  with  his  own  money  or  on  his  own  credit, 
or  furnishing  them  out  of  his  own  stock,  and  debiting  the  consignee  with  one  half  of  the 
cost  in  the  one  case,  and  of  the  value  in  the  other,  as  well  as  with  one  half  of  the  inci- 
dental expenses  of  the  consignment  incurred  by  the  consignor.  Under  such  circum- 
stances, therefore,  the  consignee  incurs  a  double  liability  to  the  consignor,  i.  e.,  he 
becomes  indebted  \.o  him  for  his  own  half  of  the  goods,  and  accountable  to  him  for  the 
consignor's  half.  Such  were  the  circumstances  in  Baxter  v.  Hozier,  5  Bing.  N.  C.  288; 
and  all  the  difficullies  in  that  case  arose  from  not  attending  to  the  distinction  just  stated. 
In  fact,  the  consignors  misconceived  their  remedy.  Instead  of  bringing  an  action  for 
an  account  of  their  own  share  of  the  goods  (as  to  which  there  was  no  controversy),  they 
should  have  brought  an  action  of  debt  or  of  indebitatus  assumpsit  to  recover  payment 
for  the  consignees'  share,  the  latter  claiming  that  the  goods  were  consigned  to  them,  not 
on  the  joint  account  of  the  consignors  and  themselves,  but  solely  as  the  factors  of  the 
consignors, 

2  "  It  was  holden  clear  upon  the  evidence  that  if  two  men  buy  corn  jointly,  as  bar- 
ley or  the  like,  the  one  shall  not  have  account  against  his  fellow  for  the  disposal  of  this." 
Michael  Dent's  Case,  Clayton,  50,  August,  13  Car.  I,  coram  Berkeley,  J.  But  see  the 
observations  of  Willes,  C,  J.,  in  Wheeler  v.  Home,  Willes,  208,  209. 

3  See  Lindley,  Parln.  (4th  ed.),  p.  64. 

*  "  No  instance  of  an  action  of  account  brought  by  one  partner  against  another  is 
known  to  the  writer."     Lindley,  Partn.  (4th  ed.),  p.  1022,  n.  k. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  97 

There  are  insuperable  objections  to  a  bill  for  an  account  by  one 
of  two  copartners  against  the  other.  First,  the  property  of  which 
an  account  is  sought  is  as  much  in  the  possession  of  the  plaintiff 
as  of  the  defendant.  Secondly,  the  plaintiff  is  neither  the  sole 
owner  of  the  partnership  property,  nor  the  owner  of  any  fixed 
share  of  it.  What,  then,  shall  he  have  an  account  of .-'  Thirdly, 
if  one  of  two  copartners  is  accountable  to  the  other,  the  other, 
pari  rationc,  is  accountable  to  him  ;  and  hence  we  hav'e  two  per- 
sons accountable  to  each  other  for  the  same  thing  and  at  the  same 
time.  Fourthly,  an  account  by  one  of  two  copartners  with  the 
other  will  establish  nothing,  nor  produce  any  result,  unless  the 
other  also  account  with  him.  The  truth  is,  the  ordinary  bill  by 
one  or  more  partners  against  the  other  or  others  is  not  a  bill  for 
an  account,  but  a  bill  for  the  partition  or  division  of  the  part- 
nership assets  among  the  partners  ;  and  this  explains  the  fact 
that  such  a  bill  cannot  be  maintained  without  a  dissolution  of 
the  partnership.^  In  order  to  ascertain  how  the  assets  shall  be 
divided,  there  must,  indeed,  be  an  accounting  (so  called)  ;  but  it 
is  an  accounting  between  each  partner,  on  the  one  hand,  and 
the  firm,  considered  as  a  distinct  person,  on  the  other  hand ; 
and  the  relation  between  the  several  partners  and  the  firm  is 
that  of  debtor  and  creditor,  and  is  not  a  relation  created  by  an 
obligation  to  account. 

The  relation  between  a  commercial  traveller  and  his  employer 
is  merely  that  of  debtor  and  creditor,  even  though  the  former  be 
paid  for  his  services  by  a  commission  on  the  sales  made  through 
him  ;  ^  but  if,  by  the  agreement,  he  were  entitled  specifically  to  a 
share  of  the  proceeds  of  such  sales,  he  could  maintain  a  bill  for 
an  account.^ 

A  trustee  is  obviously  under  an  obligation  to  account  with  his 
cestui  que  trust  for  the  trust  property  or  its  income  ;  but  this  obli- 
gation is  merely  equitable,  and  therefore  a  bill  by  a  cestui  que  trust 
against  his  trustee  is  never  a  bill  for  an  account  in  point  of  juris- 
diction. 

An  executor  or  administrator  is  under  a  legal  duty  to  pay  or 
deliver  over  the  personal  property  of  his  testator  or  intestate,  after 
payment  of  debts,  to  the  legatees  or  next  of  kin,  and  the  latter 

1  Roberts  v.  Eberhardt,  Kay,  148,  157-S. 

2  Smith  V.  Leveaux,  2  De  G.,  J.  &  S.  1. 

See  supra,  p.  94    and  n.  2. 


98  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

may  maintain  a  bill  to  compel  a  performance  of  this  duty;  but 
such  a  bill  is  not  a  bill  for  an  account.  The  reasons  why  it  is  not 
are  several,  but  there  is  one  which  is  alone  sufficient  in  this  connec- 
tion, namely,  that  the  jurisdiction  over  such  bills  was  derived  by 
equity  from  the  canon  or  ecclesiastical  law.  If,  however,  a  testator 
by  his  will  give  to  A  the  proceeds  of  certain  land  which  he  directs 
his  executor  to  sell,  and  the  executor  sell  the  same  accordingly, 
and  receive  the  proceeds,  though  there  is  no  doubt  that  A  can 
maintain  a  bill  against  the  executor  to  recover  such  proceeds,  it  is 
not  so  clear  what  will  be  the  true  nature  of  such  a  bill  in  point  of 
jurisdiction.  The  question  depends  upon  whether  the  case  would 
formerly  have  belonged  to  the  common-law  courts  (in  which  case 
the  remedy  would  have  been  an  action  of  account),  or  to  the 
ecclesiastical  courts,  the  gift  being  regarded  as  a  legacy.  It  seems 
to  be  pretty  well  settled  that  the  former  is  the  correct  view.i 

An  attorney-at-law  who  collects  money  for  a  client  is  bound  to 
pay  it  over  to  his  client  at  the  earliest  opportunity ;  and  in  the 
mean  time  he  must  not  mix  it  with  his  own  money.  A  bill  for 
an  account  will  therefore  lie  against  him.  So,  it  seems,  a  sheriff 
is  accountable  to  the  judgment  creditor  for  the  proceeds  of  prop- 
erty levied  upon  and  sold  by  the  former  under  an  execution.^  In 
the  case  of  a  sheriff,  however,  as  well  as  in  that  of  an  attorney, 
there  is  a  summary  remedy  in  the  court  out  of  which  the  execu- 
tion issues,  or  of  which  the  attorney  is  an  officer,  which  renders 
an  action  or  suit  against  either  seldom  necessary.  Moreover,  if 
an  action  or  suit  is  to  be  brought,  an  action  of  indebitatus  assump- 
sit will  generally  be  more  convenient  than  a  suit  in  equity  ;  and 
to  render  such  an  action  available,  it  seems  only  necessary  for  the 
plaintiff  to  make  a  demand  before  suing. 

A  stakeholder  is  clearly  not  entitled  to  debit  himself  with  the 
stakes  received  by  him,  and  therefore  he  is  accountable  for  them;^ 
and,  though  here  also  an  action  of  indebitatus  assumpsit  will  gen- 
erally be  more  convenient  than  a  bill  for  an  account,  yet  a  pre- 
vious demand  ought  to  be  a  necessary  condition  of  maintaining 
such  an  action. 


1  Paschall  v.  Keterich,  Dyer,  151  b;   Barker  v.  May,  9  B.  &  Cr.  489.     But  see  Anon., 
Dyer,  264  b;   Dens  v.  Dens,  i  Bulstr.  153. 

2Speake  v.  Richards,  Hobart,  206;   i  Vin.  Abr.,  Account  (D),  pi.  9. 
8  Baynton   v.  Cheek,  Styles,  353. 


ARTICLE    v.* 


Bills  of  Equitable  Assumpsit. 

REFERENCE  was  made,  in  the  preceding  article,^  to  the 
wide,  indeterminate,  and  vague  sense  in  which  the  term 
*'  account"  is  used  in  equity;  and  it  was  observed  that  it  has  been 
usual  to  call  all  bills  in  equity,  which  may  involve  a  reference  to 
a  Master,  to  take  an  account  of  any  kind  or  for  any  purpose,  bills 
for  an  account.  Accordingly,  it  has  been  usual  to  call  the  bills 
now  to  be  considered,  bills  for  an  account.  Indeed,  this  is  the  only 
name  by  which  they  have  ever  been  known ;  and  no  clear  distinc- 
tion has  ever  been  taken  between  these  bills  and  the  class  of  bills 
treated  of  in  the  preceding  article.  Moreover,  the  writer  is  not 
aware  that  it  has  ever  been  doubted  that  the  former  constitute  true 
bills  for  an  account.  To  call  them,  therefore.  Bills  of  Equitable 
Assumpsit,' is  undoubtedly  a  novelty;  but  it  is  a  novelty  which  is 
believed  to  be  justified  by  the  circumstances  of  the  case.  That  the 
bills  treated  of  in  the  preceding  article  are  true  bills  for  an  account, 
is  a  fact  which  is  not  supposed  to  be  open  to  doubt;  and  it  is 
hoped  that  the  present  article  will  convince  the  reader  of  the 
necessity  of  finding  another  name  for  the  bills   now  to  be  con- 

1  3  Harv.  L.  Rev.  237. 
*  See  supra,  page  75. 


lOO        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

sidered.  "  Equitable  Assumpsit "  may  not  be  the  best  name  that 
can  be  found,  but  it  is  beheved  to  be  open  to  no  serious  objection, 
and  it  is  strictly  analogous  to  the  name  given  to  another  class  of 
bills,  namely,  "  Equitable  Ejectment."  It  may  be  proper,  how- 
ever, to  remind  the  reader  that  the  term  "  equitable,"  in  this  con- 
nection, means,  not  that  the  claim  on  which  the  bill  is  founded  is 
equitable,  but  that  the  suit  instituted  by  the  bill  differs  from  an 
action  of  assumpsit  only  or  chiefly  as  a  suit  in  equity  necessarily 
differs  from  an  action  at  law. 

As  bills  for  an  account  have  been  pretty  fully  described  in  the 
preceding  article,  it  will  be  convenient,  in  the  present  article,  to 
point  out  in  what  particulars  bills  of  equitable  assumpsit  differ  from 
bills  for  an  account.  First,  then,  while,  as  has  been  seen,  a  bill  for 
an  account  is  founded  upon  an  obligation  to  render  an  account,  a 
bill  of  equitable  assumpsit  is  founded  upon  a  debt;  and,  while  it  is 
the  object  of  a  bill  for  an  account  to  compel  performance  of  an 
obligation  to  account,  it  is  the  object  of  a  bill  of  equitable  assump- 
sit to  compel  payment  of  a  debt. 

Secondly,  though  the  final  relief  upon  both  classes  of  bills  is 
the  same,  namely,  the  payment  of  a  debt,  yet,  while  upon  a  bill 
for  an  account,  such  final  relief  is  strictly  consequential  upon  the 
taking  of  an  account,  which  constitutes  the  primary  relief,  upon  a 
bill  of  equitable  assumpsit  the  payment  of  a  debt  constitutes  the 
entire  relief  sought.  In  other  words,  the  debt  finally  recovered 
upon  a  bill  for  an  account  has  no  legal  existence  until  the  account 
is  taken  and  a  balance  struck,  and  therefore  the  accounting  is 
always  the  cause  of  the  debt,  while  the  debt  recovered  upon  a  bill 
of  equitable  assumpsit  exists  when  the  bill  is  filed,  and  the  bill  is 
founded  upon  it,  and  the  cause  of  the  debt  varies  with  the 
transaction  out  of  which  the  debt  arose.  A  consequence  of  this 
distinction  is  that,  in  a  bill  for  an  account,  it  is  necessary  only  to 
state  facts  which  constitute  an  obligation  to  account,  and  that  an 
accounting  will  show  a  balance  in  the  plaintiff's  favor,  while,  in  a 
bill  of  equitable  assumpsit,  it  is  necessary  not  only  to  state  facts 
which  constitute  a  debt,  but  also  to  show  the  amount  of  the  debt. 
This  latter  rule  is  not,  indeed,  so  strictly  applied  as  to  require  a 
plaintiff  to  state  the  precise  amount  due  to  him,  at  the  peril  of 
having  his  bill  dismissed,  but  it  effectively  prevents  a  plaintiff  from 
recovering  more  than  he  claims.  If  the  amount  originally  due  to 
the  plaintiff  has  been  reduced  by  payments,  he  may  either  claim 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         lOl 

the  full  amount  originally  due  to  him  (in  which  case,  of  course, 
the  defendant  must  set  up  the  payments  as  a  defence  pro  taiito), 
or  he  may,  at  his  option,  claim  only  what  remains  due  to  him  after 
deducting  the  payments.  Before  taking  this  latter  course,  how- 
ever, the  plaintiff  must  make  sure  that  what  he  allows  as  a  pay- 
ment, is  in  truth  a  payment,  and  not  a  cross  claim  or  set-off;  for,  if  he 
allows  as  a  pa\-ment  what  is  in  truth  a  cross  claim  or  set-off,  the  con- 
sequence will  be  that  he  will  reduce  the  amount  of  his  own  claim, 
and  yet  leave  the  defendant's  cross  claim  in  full  force.  Whenever, 
therefore,  there  exist  cross  demands  between  two  persons,  and  one 
of  them  files  a  bill  of  equitable  assumpsit  against  the  other,  the 
only  safe  course  for  the  plaintiff  is  to  claim  the  full  amount  of  all 
the  items  in  his  favor,  paying  no  attention  to  the  items  in  the 
defendant's  favor,  but  leaving  the  defendant  either  to  avail  himself 
of  the  items  in  his  own  favor  in  the  same  suit,  or  to  make  them 
the  subject  of  a  separate  suit,  at  his  option. 

Thirdly,  while  the  jurisdiction  of  equity  over  bills  for  an  account 
is  founded  on  the  nature  of  the  obligation  sought  to  be  enforced, 
coupled  with  the  fact  that  there  is  no  remedy  at  law  for  the  en- 
forcement of  such  an  obligation,  the  jurisdiction  of  equity  over 
bills  of  equitable  assumpsit  is  founded  on  the  fact  that  the  claim 
sought  to  be  enforced  is  too  complicated  in  its  circumstances  to 
be  tried  by  a  jury.  While,  therefore,  a  bill  for  an  account  involves 
primarily  but  one  question,  namely,  is  the  defendant  under  an 
obligation  to  account  to  the  plaintiff,  a  bill  of  equitable  assumpsit 
involves  two  questions,  namely,  first,  is  the  defendant  indebted  to 
the  plaintiff?  secondly,  is  the  case  too  complicated  to  be  tried  by 
a  jury  ?  A  consequence  is  that,  while  the  plaintiff  in  a  bill  for  an 
account  has  the  affirmative  of  but  one  question  to  establish  in 
order  to  entitle  him  to  a  decree,  and  hence  it  is  impossible  for  him 
to  fail  except  upon  the  merits  of  his  case,  a  plaintiff  in  a  bill  of 
equitable  assumpsit  has  the  affirmative  of  two  questions  to  establish. 
—  one  involving  the  merits  of  his  case,  the  other  involving  only  a 
question  of  jurisdiction;  and  if  he  fail  to  establish  either,  his  bill 
will  be  dismissed.  In  short,  while  a  bill  for  an  account  never 
properly  involves  any  question  of  jurisdiction,  a  bill  of  equitable 
assumpsit  always  involves  a  question  of  jurisdiction.  Moreover,  as 
a  plaintiff  must  always  state  in  his  bill  whatever  he  will  be  required 
to  prove  at  the  hearing  in  order  to  obtain  a  decree,  it  follows  that  a 
plaintiff  in  equitable  assumpsit  must  state  facts  showing  not  only 


I02  A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  existence  of  the  cause  of  action  on  which  the  bill  is  founded, 
but  also  that  it  is  a  cause  of  action  of  which  equity  will  take  juris- 
diction ;  and  for  this  latter  purpose  it  will  not  be  sufficient  to  allege 
generally  that  the  cause  of  action  involves  so  much  complication 
that  it  cannot  be  properly  tried  by  a  jury;  but  facts  must  be  stated 
from  which  the  court  can  see  that  such  complication  exists. 

Fourthly,  in  equitable  assumpsit,  whatever  money  the  defendant 
has  paid,  either  to  the  plaintiff  or  on  the  plaintiff's  account  and  by 
his  authority,  will  constitute  either  a  defence  pro  tanto,  to  be  set  up 
as  such  in  the  defendant's  defensive  pleading,  or  a  cross  claim  in 
the  defendant's  favor,  of  which  the  defendant  may  avail  himself  in 
the  same  action  or  in  a  separate  action,  at  his  option.  Upon  a  bill 
for  an  account,  on  the  other  hand,  whatever  money  the  defendant 
has  paid,  either  to  the  plaintiff  or  on  the  plaintiff's  account,  has 
been  paid  in  legal  contemplation  out  of  the  plaintiff's  own  money 
in  the  defendant's  hands,  and,  therefore,  it  constitutes  neither  a 
defence  to  the  plaintiff's  claim  (which  is  only  for  such  balance 
as  shall  be  found  in  the  plaintiff's  favor  upon  the  accounting),  nor 
a  cross  claim  in  the  defendant's  favor.  Such  payments,  therefore, 
should  not  properly  be  noticed  in  the  defendant's  pleadings,  but 
will  be  allowed  to  him  on  the  accounting  as  items  of  discharge. 

Fifthly,  a  bill  of  equitable  assumpsit,  as  well  as  a  bill  for  an 
account,  may  be  successfully  met  by  the  defence  of  an  account 
stated ;  but  the  defences  known  by  this  name  in  the  two  classes  of 
cases  differ  widely  from  each  other.  As  the  object  of  a  bill  for  an 
account  is  to  compel  performance  of  an  obligation  to  account,  of 
course  it  is  a  good  defence  to  such  a  bill  that  the  obligation  has 
been  performed.  Moreover,  as  the  obligation  is  only  to  account, 
—  not  to  account  and  pay,  —  it  follows  that  an  account  stated  is  a 
complete  legal  defence  to  a  bill  for  an  account,  as  it  was  formerly 
(under  the  name  of  plene  covipiUavii)  to  an  action  of  account. 
Such  a  defence,  though  it  does  not  show  that  the  plaintiff's  claim 
has  been  actually  satisfied,  does  show  that  its  legal  nature  has  been 
changed,  —  that  it  has  been  converted  from  a  demand  lying  in 
account  into  a  debt.  In  equitable  assumpsit,  on  the  other  hand, 
the  defence  of  an  account  stated  does  not  show  that  the  defendant's 
obligation  has  been  performed,  nor  that  the  legal  nature  of  the 
plaintiff's  claim  has  been  changed.  The  plaintiff's  claim  was 
originally  a  debt,  and  it  is  the  same  debt  still;  and  an  account 
stated  simply  shows  that  the  amount  of  the  debt  has  been  ascer- 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.         1^3 

tained  and  settled.  Clearly,  therefore,  it  is  no  legal  defence  to  the 
plaintiff's  claim.  And  yet  it  is  a  good  equitable  defence  to  the 
bill.  Why?  Because  it  is  a  complete  answer  to  a  necessary  alle- 
gation in  the  bill,  namely,  that  the  plaintiff's  claim  is  too  compli- 
cated to  be  tried  by  a  jury.  It  is  a  good  defence,  therefore,  going 
to  the  jurisdiction  of  the  court. 

Sixthly,  though  the  first  decree  upon  a  bill  of  equitable  assump- 
sit, like  that  upon  a  bill  for  an  account,  cjirects  a  reference  to  a 
Master  to  take  an  account,  yet  the  account  to  be  taken  in  the  one 
case  differs  widely  from  that  in  the  other.  Upon  a  bill  for  an  ac- 
count, the  object  of  the  decree  in  directing  an  account  is  to  com- 
pel performance  by  the  defendant  of  his  obligation  ;  while,  upon 
a  bill  of  equitable  assumpsit,  the  object  is  to  ascertain  the  amount 
of  the  defendant's  indebtedness  to  the  plaintiff.  In  the  first  case, 
therefore,  as  the  defendant  is  to  be  compelled  to  do  what  he  ought 
to  have  done  voluntarily  and  without  a  suit,  all  the  burden  of  the 
accounting  should  be  cast  upon  him.  Accordingly,  he  is  required 
to  make  up  his  account  in  proper  form  and  bring  it  into  the  Mas- 
ter's office,  making  oath  to  it  before  the  Master;  and  if  the  plain- 
tiff can  show  that  the  account  so  brought  in  is  defective,  either  in 
form  or  in  substance,  the  defendant  must  supply  its  defects,  unless 
he  can  show  that  it  is  impossible  for  him  to  do  so.  Nothing  short 
of  impossibility  will  exempt  him  from  a  full  performance  of  his 
obligation.  If  he  attempt  to  justify  an  imperfect  account  by 
saying  that  he  cannot  make  it  more  perfect  without  consuming  an 
excessive  amount  of  time,  and  incurring  great  and  unreasonable 
labor  and  expense,  the  conclusive  answer  will  be  that  he  has 
bound  himself  to  account  fully.  In  the  second  case,  on  the  other 
hand,  all  the  burden  of  the  (so  called)  accounting  rests  upon  the 
plaintiff.  The  only  obligation  which  the  defendant  is  under  to 
the  plaintiff  is  that  of  paying  him  the  debt  he  owes  him  ;  and  to  the 
performance  of  that  obligation  the  ascertaining  of  the  amount  of 
the  debt  is  a  condition  precedent  to  be  performed  by  the  plaintiff. 
In  short,  the  ascertaining  of  the  amount  is  a  part  of  the  plaintiff's 
case,  and  the  plaintiff,  like  other  plaintiffs,  must  make  out  his  case. 
To  aid  him  in  doing  this  he  is,  like  other  plaintiffs,  entitled  to 
discovery  from  the  defendant,  i.e.,  he  can  compel  the  defendant  to 
state  under  oath  what  he  knows  as  to  the  amount  of  the  debt,  and 
also  to  produce  under  oath  any  books  or  documents  in  his  posses- 
sion which  will  aid  the  plaintiff  in  proving  the  amount  of  the  debt; 


104         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

but  this  is  the  Hmit  of  the  plaintiff's  rights.  If,  indeed,  the  amount 
of  the  debt  originally  due  to  the  plaintiff  has  been  reduced  by 
payments,  such  payments  constitute,  as  we  have  seen,  a  defence 
pro  taiito,  and  so  the  defendant,  of  course,  has  the  burden  as  to 
them.  So  if,  as  often  happens  in  equitable  assumpsit,  the  de- 
fendant sets  up  a  cross  demand,  i.e.,  while  admitting  that  he  owes 
the  plaintiff,  claims  that  the  plaintiff  also  owes  him,  and  demands 
that  the  debt  due  from  the  plaintiff  to  him  shall  be  applied  in 
payment  and  extinguishment  of  the  debt  due  from  him  to  the 
plaintiff,  of  course,  the  defendant  will  be  plaintiff  as  to  the  debt 
claimed  to  be  due  to  him,  and  so  he  will  have  the  burden  as  to 
that.  In  a  word,  the  so-called  accounting  before  a  Master  in  equi- 
table assumpsit  is  a  substitute  for  a  trial  by  jury,  and  hence  it 
is  to  be  governed  by  the  same  principles  as  the  latter,  mutatis 
mutandis. 

Seventhly,  though  the  final  decree  upon  a  bill  for  an  account, 
like  that  in  equitable  assumpsit,  is  for  the  payment  of  money,  yet, 
while  in  the  latter  the  recovery  of  money  is  the  primary  and 
direct  object  of  the  suit,  in  the  former  it  is  only  consequential 
relief.  When,  upon  a  bill  for  an  account,  the  defendant  is  ad- 
judged to  have  fully  accounted,  the  whole  object  for  which  equity 
assumed  jurisdiction  of  the  suit  is  accomplished.  The  plaintiff's 
claim  has,  by  the  accounting,  been  converted  into  a  debt  recover- 
able at  law;  and  the  only  principle  on  which  equity  proceeds  to 
decree  payment  of  this  debt  is  the  avoiding  of  a  multiplicity  of 
suits.  It  follows,  therefore,  that  a  bill  for  an  account,  unlike  a  bill 
of  equitable  assumpsit,  is  always  liable  to  involve  two  successive 
suits  in  one;  namely,  first,  a  suit  for  an  account,  and,  secondly, 
a  suit  in  the  nature  of  an  action  of  debt  to  recover  the  balance 
found  in  the  plaintiff's  favor.  It  is  true  that  a  bill  of  equitable 
assumpsit,  like  a  bill  for  an  account,  always  requires  two  decrees, 
as  well  as  a  reference  to  a  Master,  but  that  is  merely  because  it  is 
not  the  practice  for  the  judge  who  hears  a  cause  to  occupy  his 
time  in  ascertaining  the  amount  due  to  the  plaintiff.  He  contents 
himself  with  ascertaining  that  the  plaintiff  has  a  cause  of  action, 
i.e.,  that  he  is  entitled  to  recover  something,  and  delegates  to  one 
of  his  assistants  the  duty  of  ascertaining  the  amount  of  the 
plaintiff's  claim.  The  reference  to  the  Master,  therefore,  is  merely 
for  the  purpose  of  completing  the  trial,  which  is  left  unfinished  at 
the  hearing.     If  the  trial  were  completed  at  the  hearing,  there 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.         105 

would  be  no  reference  and  only  one  decree.  Upon  a  bill  for  an 
account,  on  the  other  hand,  the  trial  is  finished  at  the  hearing,  and 
the  decree  then  made  is  in  its  nature  a  final  decree,  and  the  refer- 
ence ordered  is  for  the  purpose  of  obtaining  an  execution  of  that 
decree.  The  fact,  therefore,  of  there  being  two  decrees  upon  a 
bill  for  an  account  is  due  entirely  to  the  double  nature  of  the  suit 
just  referred  to.  Were  it  not  for  this  latter  circumstance,  there 
would  be  but  one  decree,  and  the  suit  would  end  with  the  taking 
of  the  account.  As  it  is,  the  two  decrees  which  are  made  are  both 
final  in  their  nature  (each  of  them  disposing  of  the  whole  sub- 
ject of  one  suit),  while  the  first  decree  upon  a  bill  of  equitable 
assumpsit  is,  in  its  nature  as  well  as  in  name,  interlocutory. 

Lastly,  an  injunction  to  restrain  the  defendant  from  suing  at 
law  is  a  very  common  incident  of  a  bill  of  equitable  assumpsit, 
while  it  is  never  an  incident  of  a  bill  for  an  account.  The  reason 
of  this  distinction  is  in  one  view  plain  enough.  No  action  at 
law  will  lie  on  an  obligation  to  account,  and  hence  equity  can 
have  no  occasion  to  enjoin  such  an  action.  On  the  other  hand, 
whenever  a  bill  of  equitable  assumpsit  will  lie,  an  action  of  debt 
or  assumpsit  will  also  lie  ;  and,  therefore,  equity  will  have  occa- 
sion to  grant  an  injunction  as  often  as  a  plaintiff  sues  at  law 
when  he  ought  instead  to  have  filed  a  bill  of  equitable  assumpsit. 
But  how  can  it  be  said  that  a  plaintiff,  who  confessedly  has  a  legal 
right  upon  which  an  action  will  lie,  ought  to  enforce  that  right  in 
equity,  and  not  at  law?  The  reason  why  equity  enjoins  the  prose- 
cution of  an  action  at  law  generally  is,  not  that  the  plaintiff  ought 
to  have  sued  in  equity  (for  generally  in  such  cases  he  could  not 
have  sued  in  equity  if  he  would),  but  that  he  ought  not  in 
justice  to  recover  at  all,  or,  at  least,  ought  not  to  recover  so  much 
as  he  would  recover  at  law.  In  other  words,  the  reason  is  that  the 
defendant  has  an  answer  to  the  action,  or  to  some  part  of  it,  which 
in  justice  and  equity  ought  to  prevail,  but  which  for  some  tech- 
nical reason  is  unavailable  at  law.  In  the  case  now  supposed, 
however,  there  is  no  element  of  injustice  in  the  plaintiff's  claim  ; 
and  even  if  there  were,  it  would  not  follow  that  the  plaintiff  ought 
to  have  refrained  from  suing  at  law,  and  to  have  sued  in  equity  in- 
stead. A  plaintiff  never  even  has  a  right  (much  less  is  it  his 
duty)  to  sue  in  equity  on  a  legal  claim,  merely  because,  if  he  sue 
at  law,  he  will  get  what  he  ought  not  to  get.  When  a  plaintiff 
sues   in  equity  upon  a  legal  claim,  he  does  so,  as  a  rule,  in  the 


Io6         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

exercise  of  a  privilege,  not  in  the  performance  of  a  duty;  he  is 
permitted,  not  required,  to  sue  in  equity,  and  therefore  he  selects 
his  tribunal  with  a  view  to  his  own  interests,  —  not  with  a  view 
to  the  defendant's  interests, — and  the  latter  has  no  voice  in  the 
question.  Accordingly,  even  when  actions  of  account  were  in 
use,  though  a  plaintiff  was  permitted  to  file  a  bill  for  an  account, 
on  the  ground  that  an  action  of  account  was  an  inadequate 
remedy;  yet,  if  he  chose  to  bring  an  action  of  account,  the 
defendant  could  not  obtain  an  injunction,  though  he  might  pre- 
fer to  account  in  equity.  How  is  it,  then,  that  the  case  now 
under  consideration  forms  an  exception  to  the  general  rule? 
The  answer  to  this  question  illustrates  the  very  peculiar  ground 
upon  which  equity  assumes  jurisdiction  in  this  class  of  cases, 
namely,  the  unfitness  of  a  common-law  court  for  the  trial  of  them. 
In  the  question.  How  shall  a  case  be  tried?  the  defendant  is  of 
course  as  much  interested  as  the  plaintiff,  and  therefore  he  is 
entitled  to  be  heard  before  being  forced  to  go  to  trial  in  a  com- 
mon-law court  in  a  case  for  which  he  deems  the  common-law 
mode  of  trial  unfit.  Where  then  can  he  be  heard?  Not  in  the 
common-law  court  where  the  action  is  brought,  for  such  a  court 
cannot  decline  jurisdiction  of  a  case  regularly  brought  before  it, 
and  its  only  way  of  disposing  of  the  case  is  by  trying  and  deciding 
it,  and  its  trial  and  decision  will  be  final  and  conclusive.  More- 
over, such  a  court  has  but  one  mode  of  trial,  namely,  by  a 
jury.  With  the  consent  of  both  parties,  indeed,  it  can  and  will 
refer  a  case  to  an  arbitrator,  if  it  be  deemed  unfit  to  be  tried  by 
a  jury;  but  without  such  consent  the  court  is  powerless. 

A  court  of  equity,  then,  is  the  only  place  in  which  the  defendant 
can  be  heard  upon  the  question  whether  the  case  is  fit  to  be  tried 
by  a  jury;  and  accordingly  he  may  file  a  bill  for  the  purpose  of 
obtaining  such  a  hearing.  What  will  be  the  equity  of  such  a  bill, 
and  what  relief  will  it  seek?  If  the  defendant  have  no  cross  de- 
mands, it  seems  that  the  equity  of  the  bill  will  be  only  this,  namely, 
that  the  defendant  is  prosecuting  an  action  against  the  plaintiff 
which  is  unfit  to  be  tried  by  a  jury,  and  the  only  relief  prayed  will 
be  a  perpetual  injunction  against  the  prosecution  of  the  action. 
At  the  hearing,  therefore,  the  only  question  to  be  tried  and  de- 
cided will  be  whether  the  action  is  fit  to  be  tried  by  a  jury.  If 
that  question  be  decided  in  the  affirmative,  the  bill  will  be  dis- 
missed ;   if  it  be  decided  in  the  negative,  a  decree  will  be  made  for 


A    BRIEF  SURVEY  OF  EQC//TV  JURISDICTION.        10/ 

a  perpetual  injunction.  In  the  former  event,  of  course  the  action 
at  law  will  proceed  ;  in  the  latter,  the  plaintiff  at  law,  if  he  wish  to 
enforce  his  claim,  will  have  to  file  a  bill  of  equitable  assumpsit,  as 
he  ought  to  have  done  in  the  first  instance. 

If  the  defendant  at  law  have  cross  demands  against  the  plaintiff 
at  law,  his  bill  may,  at  his  option,  have  a  double  equity;  namely, 
first,  that  he  has  demands  against  the  defendant  in  equity  which 
are  unfit  to  be  tried  by  a  jury;  secondly,  that  the  defendant  in 
equity  is  prosecuting  an  action  at  law  against  him  which  is  unfit  to 
be  tried  by  a  jury;  and  accordingly  double  relief  may  be  prayed, 
namely,  first,  that  the  defendant  in  equity  be  compelled  to  satisfy 
the  demands  of  the  plaintiff  in  equity;  secondly,  that  the  prosecu- 
tion of  the  action  at  law  be  enjoined.  In  short,  the  bill  may  have 
the  double  character  of  a  bill  of  equitable  assumpsit  and  a  bill  to 
enjoin  an  action  at  law.  If  the  bill  assume  this  double  character, 
the  subsequent  stages  of  the  suit  will  vary  according  to  circum- 
stances. Thus,  if  the  defendant  resist  the  suit  in  both  its  aspects, 
there  will  be  two  questions  to  be  tried  at  the  hearing;  namely,  first, 
whether  the  claim  set  up  in  the  bill  is  fit  to  be  tried  by  a  jury; 
secondly,  whether  the  action  at  law  is  fit  to  be  tried  by  a  jury.  If 
the  first  question  be  decided  in  the  affirmative,  so  much  of  the  bill 
as  seeks  a  recovery  against  the  defendant  will  go  for  nothing.  If 
the  second  question  be  decided  in  the  affirmative,  so  much  of  the 
bill  as  seeks  an  injunction  will  go  for  nothing.  If  both  questions 
be  decided  in  the  affirmative,  the  bill  will  be  dismissed.  If  the 
second  question  be  decided  in  the  negative,  a  perpetual  injunction 
will  be  granted,  and  the  plaintiff  at  law  will  have  to  file  a  bill  of 
equitable  assumpsit,  if  he  wish  to  enforce  his  claim.  If  the  first 
question  be  decided  in  the  negative,  it  will  follow  that  the  plaintiff 
in  equity  is  entitled  to  enforce  his  claim  in  equity;  and  accord- 
ingly a  decree  will  be  made,  referring  the  cause  to  a  Master  to 
take  an  account  of  the  plaintiff's  claim,  i.e.,  to  ascertain  its  amount. 
When  the  amount  has  been  ascertained,  the  cause  will  be  brought 
on  again,  and  a  final  decree  will  be  made  that  the  defendant  pay 
the  plaintiff  the  amount  found  due  to  the  latter.  If  both  questions 
be  decided  in  the  negative,  of  course  the  plaintiff  will  be  entitled 
to  both  branches  of  relief  just  indicated. 

The  defendant  in  equity  may,  however,  think  it  not  for  his 
interest  to  resist  the  suit  in  equity;  and  in  that  case  he  will  submit 
to  an  injunction,  and  will  set  up   his  cross  claims,  either  in  his 


I08         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

answer  to  the  plaintiff's  bill  or  in  a  cross-bill;  and  the  suit  in 
equity  will  then  assume  the  character  of  a  suit  and  cross-suit,  and 
the  cross  claims  (when  severally  ascertained)  will  be  set  off  against 
each  other,  and  a  decree  will  be  made  in  favor  of  the  party  in 
whose  favor  the  balance  is  found  to  be  for  the  payment  of  such 
balance.  Indeed,  the  defendant  in  equity  will  generally  find  it  to 
be  for  his  interest  to  set  up  his  cross  claims  in  the  suit  brought 
against  him,  even  though  he  resist  that  suit,  in  order  that,  in  the 
event  of  his  resistance  proving  unsuccessful,  he  may  try  his  claims 
in  the  same  suit  in  which  the  claims  of  the  plaintiff  in  equity  are 
tried,  and  thus  have  the  former  set  off  against  the  latter. 

As  to  what  will  constitute  sufficient  complication  to  render  a 
case  unfit  to  be  tried  by  a  jury,  no  certain  rule  can  be  laid  down, 
and  hence  much  must  necessarily  be  left  to  the  discretion  of  the 
judge  before  whom  the  question  comes.^  There  are  one  or  two 
considerations,  however,  which  will  be  found  to  be  of  much  service 
in  guiding  a  judge's  discretion,  and  in  leading  him  to  a  correct 
decision  of  the  question.  First,  the  burden  should  be  cast  upon 
him  who  denies  the  competency  of  a  jury  to  try  the  case ;  for  trial 
by  jury  is  the  constitutional  mode  of  trying  legal  rights.  Sec- 
ondly, it  should  not  be  deemed  sufficient  for  the  party  who  has 
the  burden  to  show  that  the  mode  of  trial  provided  by  equity 
will  be  better  in  the  given  case  than  trial  by  jury.  He  should  be 
required  to  show  that  a  jury  cannot  try  the  case  properly,  and, 
therefore,  that  there  is  a  necessity  for  providing  some  other  mode 
of  trial ;  for  nothing  short  of  necessity  can  justify  an  equity  judge 
in  depriving  either  party  to  a  legal  controversy  of  his  constitutional 
right  to  a  trial  by  jury.  Thirdly,  the  temptation  should  be  guarded 
against  of  letting  the  decision  turn  upon  the  number  of  items 
involved;  for  much  more  depends  upon  the  character  of  the  items 
than   upon  their  number.     In  many  cases,  where   the  items  are 

1  For  cases  in  which  a  bill  of  equitable  assumpsit  has  been  entertained,  see  Kenning- 
ton  V.  Houghton,  2  Y.  &  Coll.  C.  C.  620 ;  Taff  Vale  Railway  Co.  -j.  Nixon,  i  H.  L.  Gas. 
III.  For  cases  in  which  there  has  been  held  not  to  be  sufficient  complication  to  warrant 
a  bill  of  equitable  assumpsit,  see  Dinwiddle  v.  Bailey,  6  Ves.  136;  King  v.  Rossett,  2 
Y.  &  Jer.  33  ;  Phillips  v.  Phillips,  9  Hare,  471 ;  Padwick  v.  Stanley,  9  Hare,  627  ;  Smith 
V.  Leveaux,  2  DeG.,  J.  &  S.  i  ;  Moxon  v.  Bright,  L.  R.  4  Ch.  292.  In  Foley  v.  Hill,  2 
H.  L.  Cas.  28,  which  was  a  bill  by  a  customer  against  his  banker,  there  were  only  three 
items  involved,  namely,  a  deposit  of  £,(>,W]  ids.,  and  two  checks  for  ;^  1,700  and  ;^2,ooo, 
respectively;  and  it  was  held  that  the  bill  would  not  lie.  The  case  involved  another 
question  of  jurisdiction;  otherwise,  it  would  have  been  too  clear  for  argument. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         109 

numerous,  they  are  yet  so  simple  in  their  character,  and  so  much 
alike,  that  their  number  does  not  render  the  case  at  all  com- 
plicated. Of  this  description  are  most  cases  between  bankers  and 
their  customers,  where  the  items,  however  numerous,  constitute 
but  two  simple  classes;  namely,  money  deposited  with  {i.e.,  paid 
to)  the  banker  by  the  customer,  and  money  paid  by  the  banker  to 
the  customer,  or  to  others  by  his  order,  i.i\,  in  payment  of  the 
customer's  checks.  Moreover,  it  is  scarcely  possible,  in  such  a 
case,  that  the  controversy  should  not  turn  entirely  upon  a  small 
number  of  items,  the  others  being  involved  in  no  doubt.  The 
truth  of  this  last  observation  is  strikingly  illustrated  by  the  case  of 
Bayley  v.  Adams, ^  where  a  bill  of  equitable  assumpsit  was  filed 
upon  a  claim  which  involved  but  one  controverted  fact,  and  that 
too  a  fact  eminently  proper  to  be  tried  by  a  jury.  Fourthly,  the 
degree  of  complication  which  a  suit  involves  may  depend  upon  the 
nature  of  the  defence,  as  well  as  upon  the  nature  of  the  claim. 
Thus,  when  the  defence  is  payment,  the  payment  may  be  made  up 
of  a  great  number  of  items,  and  items  of  payment  are  as  likely  to 
involve  complication  as  items  of  claim. 

It  has  been  held^  that  a  case  may  be  so  circumstanced  as  to  give 
the  plaintiff  an  absolute  choice  between  a  bill  of  equitable  as- 
sumpsit and  an  action  at  law,  i.e.,  that  a  bill  of  equitable  assump- 
sit, if  he  choose  to  file  one,  will  be  entertained,  and  yet,  if  he 
choose  to  bring  an  action  at  law,  such  action  will  not  be  enjoined; 
in  other  words,  that  a  case  may  be  so  complicated  as  to  authorize 
the  plaintiff  to  come  into  equity,  and  yet  not  so  complicated  as  to 
require  him  to  do  so.  Doubtless,  if  either  party  ever  has  a  right 
to  choose  between  an  action  at  law  and  equitable  assumpsit,  that 
right  must  belong  to  the  plaintiff;  but,  if  what  has  been  said  in 
the  preceding  paragraph  is  correct,  neither  party  ever  has  that 
right;  for,  if  the  case  can  be  tried  by  a  jury,  each  party  is  en- 
titled to  have  it  so  tried,  and  if  it  cannot,  neither  party  has  a 
right  to  make  the  attempt  so  to  try  it.  It  seems,  therefore,  that 
equity,  in  assuming  or  declining  jurisdiction  in  this  class  of  cases, 
should  always  be  governed  by  the  same  principles,  whether  its 
jurisdiction  be  invoked  by  the  plaintiff  or  by  the  defendant. 

When  there  are  cross  demands  between  two  persons,  and  one 

1  6  Ves.  586. 

2  S.  E.  Railway  Co.  v.  Brogden,  3  M.  &  G.  8;  and  see  N.  E.  Railway  Co.  v.  Martin, 
2  Ph.  758. 


no         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

of  them  files  a  bill  of  equitable  assumpsit  against  the  other,  and 
the  latter  sets  up  the  claims  in  his  own  favor,  either  in  his  answerer 
in  a  cross-bill  (in  which  latter  case  the  suit  and  cross-suit  are  heard 
together  and  as  one  suit),  of  course  the  trial  will  presumably  in- 
volve twice  as  much  complication  as  if  the  items  in  the  plaintiff's 
favor  were  alone  to  be  tried  ;  and  that  fact  has  led  to  the  opinion 
that  the  question,  whether  equity  shall  assume  jurisdiction  in  a 
given  case,  depends  largely  upon  whether  there  are  cross  demands.^ 
That  opinion,  however,  seems  to  be  erroneous.  First,  the  question 
is,  not  what  complication  a  suit  in  equity  may  involve,  but  what 
complication  a  trial  at  law  will  involve.  Secondly,  cross  demands 
can  be  tried  at  law  in  one  action  only  when  the  defendant  sets  up 
the  demands  in  his  favor  by  a  plea  of  set-off,  or  (in  the  modern 
statutory  systems)  by  a  counter-claim ;  and  whether  a  defendant 
in  an  action  shall  avail  himself  of  items  in  his  favor  by  way  of  set- 
off or  counter-claim,  or  by  a  separate  action,  is  entirely  at  his 
option.  Suppose,  then,  one  of  two  persons  between  whom  cross 
demands  exist,  brings  an  action  at  law  on  the  items  in  his  favor, 
and  thereupon  the  other  files  a  bill  of  equitable  assumpsit  and  for 
an  injunction.  First,  the  defendant  in  equity  may  demur  to  the  bill 
as  a  bill  of  equitable  assumpsit,  and  if  he  do,  his  demurrer  must 
be  allowed,  unless  the  plaintiff  in  equity  can  show  that  the  de- 
mands in  his  favor  are  too  complicated  to  be  tried  by  a  jury; 
and  in  deciding  this  question,  clearly  no  notice  can  be  taken  of 
the  demands  in  favor  of  the  defendant  in  equity.  Secondly,  the 
defendant  in  equity  may  demur  to  the  bill  as  a  bill  for  an  injunc- 
tion, and  if  he  do,  his  demurrer  must  be  allowed,  unless  the 
plaintiff  in  equity  can  show  that  the  demands  on  which  the  action 
at  law  is  founded  are  too  complicated  to  be  tried  by  a  jury;  and 
here  again  no  notice  can  be  taken  of  the  demands  in  favor  of  the 
plaintiff  in  equity,  for  he  has  not  set  them  up  in  the  action  at  law; 
and  even  if  he  had  done  so,  he  could  not  make  that  fact  a  ground 
for  asking  for  an  injunction.  If  both  demurrers  be  allowed,  on 
the  ground  that  the  demands  of  neither  party  are  too  complicated 
to  be  tried  by  a  jury,  and  thereupon  the  plaintiff  in  equity  plead 
the  demands  in  his  favor  by  way  of  set-off  or  counter-claim  to  the 
action  at  law  brought  against  him,  it  may  happen  that  the  de- 
mands of  both  parties  will  make  the  case  too  complicated  to  be 
tried  by  a  jury,  though  the  demands  of  neither  party  alone  would 

1  But  see  infra,  p.  112,  n.  1. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         Ill 

have  that  effect.  If  such  an  improbable  event  should  happen,  the 
plaintiff  at  law  would  clearly  be  entitled  to  abandon  his  action  at 
law,  and  file  a  bill  of  equitable  assumpsit,  setting  forth  his  claim, 
that  he  had  brought  an  action  to  enforce  it,  and  that  the  defendant 
to  the  action  had  set  up  therein  demands  in  his  own  favor  by  way 
of  set-off  or  counter-claim,  and  had  thus  rendered  the  action  too 
complicated  to  be  tried  by  a  jury.  It  is  true  that  the  existence  of 
cross  demands  would  thus  become  indirectly  the  cause  of  equity's 
assuming  jurisdiction,  but  the  direct  cause  would  be  the  fact  of  the 
defendant's  insisting  upon  having  the  demands  in  his  favor  tried  in 
the  same  action  in  which  the  plaintiff's  were  tried. 

It  is  possible  also  that  the  plaintiff  might  take  another  course 
in  the  case  just  supposed  ;  namely,  file  a  bill  to  restrain  the  defend- 
ant from  giving  any  evidence,  on  the  trial  of  the  action,  in  support 
of  the  demands  in  his  favor,  and  thus  making  it  impracticable  to 
try  the  action.  Whether  such  a  bill  would  lie  or  not,  would  seem 
to  depend  upon  whether  the  right  of  the  plaintiff  to  have  his  case 
tried  by  a  jury,  or  the  right  of  the  defendant  to  have  his  demands 
set  off  against  the  plaintiff's  demands,  should  be  deemed  the  more 
sacred. 

Much  of  the  uncertainty  and  confusion  to  be  found  in  the  books 
on  the  subject  of  cross  demands  are  due  to  the  inveterate  habit, 
prevailing  among  lawyers  as  well  as  among  laymen,  of  applying 
unconsciously  to  cross  demands  the  civil-law  doctrine  of  compen- 
sation {compeftsatio) ;  namely,  that  cross  demands  extinguish 
each  other  ipso  Jure,  and  hence  that  only  the  balance  (in  favor  of 
the  party  whose   demands  are  the   larger)   is  due,^     If  the   doc- 

1  A  mistake  could  scarcely  become  so  prevalent  without  some  special  reason  ;  and 
more  than  one  such  reason  can  easily  be  found.  First,  the  doctrine  of  compensation  is 
founded  in  natural  justice.  "  Natural  equity  says  that  cross  demands  should  compensate 
each  other  by  deducting  the  less  sum  from  the  greater;  and  that  the  difference  is  the 
only  sum  that  can  be  justly  due.  But  positive  law,  for  the  sake  of  the  forms  of  proceeding 
and  convenience  of  trial,  has  said  that  each  must  sue  and  recover  separately  in  separate 
actions.  .  .  .  The  natural  sense  of  mankind  was  first  shocked  at  this  in  the  case  of 
bankrupts,  and  it  was  provided  for  by  4  Anne,  c.  17,  §  11,  and  5  Geo.  II.,  c.  30,  §  28. 
.  .  .  Where  there  was  no  bankruptcy,  the  injustice  of  not  setting  off  (especially  after 
the  death  of  either  party)  was  so  glaring  that  Parliament  interfered  by  2  Geo.  II.,  c.  22, 
§  13,  and  8  Geo.  II.,  c.  24,  §  5  [Statutes  of  Set-off]."  Per  Lord  Mansfield,  in  Green  v. 
Farmer,  4  Burr.  2214,2220-1.  Secondly,  the  system  of  merchants' accounts,  which  had  its 
origin  in  countries  where  the  civil  law  prevailed,  and  which  is  in  use  all  over  the  world, 
has  made  every  mercantile  man  familiar  in  practice  with  the  doctrine  of  compensation. 
According  to  that  system,  there  is  no  diflference  between  the  payment  of  a  debt  and  a  loan 
of  money.     In  the  case  of  either,  the  person  receiving  the  money  is  made  debtor  for  it, 


112         A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

trine  of  compensation  were  a  part  of  our  law,  it  would,  of  course, 
follow  that  cross  demands  could  never  be  separated  from  each 
other,  and  that  they  would  always  have  to  be  the  subject  of  a 
single  trial,  and  hence  that  demands  in  favor  of  a  defendant  would 
always  have  the  same  effect  in  rendering  a  trial  complicated  as 
demands  in  the  plaintiff's  favor.^  In  short,  by  the  doctrine  of 
compensation  every  demand  in  a  defendant's  favor  operates  as  a 
payment  of  the  demands  in  the  plaintiff's  favor  until  the  latter 
are  extinguished,  and  hence  every  such  demand  is  subject  to  the 
observations  made  in  a  previous  paragraph  on  the  defence  of 
payment.^ 

Though  cross  demands  do  not  with  us  extinguish  each  other 
ipso  jure,  yet  they  may  be  made  to  do  so  by  the  parties  to  them, 
and  that  too  by  a  mere  agreement,  and  without  any  physical  act 
being  done.  Thus,  if  A  owe  B  $i,ooo,  and  B  owe  A  $500,  and 
they  agree  that  the  two  demands  shall  be  set  off  against  each 
other,  the  debt  due  to  A  and  one-half  of  the  debt  due  to  B  will 
thereupon  be  extinguished,  and  a  debt  of  $500,  due  from  A  to  B, 
will  alone  remain.^     That  this  result  would  be  produced  by  the 

while  the  person  from  whom  it  is  received  is  made  creditor.  Thus,  if  A  lend  $ioo  to  B,  A 
is  made  creditor  for  $ioo  in  the  books  of  B,  and  B  is  made  debtor  for  $ioo  in  the  books 
of  A.  Then,  when  B  pays  the  debt,  B  is  made  creditor  for  $ioo  in  the  books  of  A,  and  A 
is  made  debtor  for  $ioo  in  the  books  of  B.  Thus,  A  and  B  are  each  both  debtor  and 
creditor  on  the  books  of  the  other  for  $ioo;  and  then,  by  the  operation  of  the  doctrine 
of  compensation,  the  debt  due  by  each  to  the  other  is  extinguished  by  the  debt  due  to 
him  from  the  other;  and,  according  to  merchants'  accounts,  it  is  in  this  way  alone  that 
a  debt  can  ever  be  paid. 

1  And  this  accounts  in  part,  at  least,  for  the  opinion  which  has  been  combated  in  the 
last  paragraph  but  one.  Indeed,  Lord  Justice  Turner,  who  went  the  length  of  holding 
that  bills  of  equitable  assumpsit  are  confined  to  cases  of  cross  demands,  based  his  opinion 
entirely  upon  the  doctrine  of  compensation.  Thus,  in  Phillips  v.  Phillips,  9  Hare,  471, 
he  said  :  "  A  bill  of  this  nature  will  only  lie  where  it  relates  to  that  which  is  the  subject  of 
a  mutual  account ;  and  I  understnnd  a  mutual  account  to  mean,  not  merely  where  one  of 
two  parties  has  received  money  and  paid  it  on  account  of  the  other,  but  where  each  of  two 
parties  has  received  and  paid  on  the  other's  account.  I  take  the  reason  of  that  distinction 
to  be,  that,  in  the  case  of  proceedings  at  law,  where  each  of  two  parties  has  received  and 
paid  on  account  of  the  other,  what  would  be  to  be  recovered  would  be  the  balance  of  the 
two  accounts,  and  the  party  plaintiff  would  be  required  to  prove,  not  merely  that  the  other 
party  had  received  money  on  his  account,  but  also  to  enter  into  evidence  of  his  own  re- 
ceipts and  payments."  And  see,  to  the  same  effect,  Padwick  v  Stanley,  9  Hare,  627  ; 
and  compare  Makepeace  t/.  Rogers,  4  DeG.,  J.  &  S.  649. 

2  See  supra,  p.  109^ 

8  "If  obligor  or  feoffor  be  bound  by  condition  to  pay  100  marks  at  a  certain  day,  and 
at  the  day  the  parties  do  account  together,  and  for  that  the  feoffee  or  obligee  did  owe  £20 
to  obligor  or  feoffor,  that  sum  is  allowed,  and  the  residue  of  the  100  marks  paid,  this  is  a 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 13 

payment  of  $500  by  B  to  A,  and  the  immediate  repayment  there- 
of by  A  to  B,  is  plain;  but  such  payment  and  repayment  would 
be  an  idle  ceremony,  and  therefore  the  same  result  may  be  pro- 
duced without  performing  that  ceremony.  So  when  two  persons, 
between  whom  numerous  cross  demands  exist,  state  an  account 
(as  it  is  called)  and  strike  a  balance,  the  effect  is,  that  all  the 
demands  on  one  side,  and  all  those  on  the  other  side,  except  such 
balance,  are  extinguished  ;  for,  by  stating  the  account,  the  parties 
ascertain  and  agree  upon  the  amount  due  by  each  to  the  other, 
and  by  striking  a  balance  they  agree  that  the  cross  demands  so 
ascertained  and  agreed  upon  shall  be  set  off  against  each  other. 

There  is,  however,  a  material  distinction  between  the  operation 
of  law  in  extinguishing  cross  demands  and  the  operation  of  an 
agreement  of  the  parties  in  producing  the  same  result;  for  the 
former,  while  it  makes  it  a  condition  of  enforcing  the  demands  of 
either  party  that  the  amount  of  the  demands  of  each  party  be 
ascertained,  does  nothing  in  the  way  of  satisfying  that  condition, 
but  leaves  the  amount  of  each  party's  demands  just  as  uncertain 
as  it  would  be  if  no  extinguishment  of  them  had  taken  place  ;  and 
hence  the  application  of  the  doctrine  of  compensation  to  cross 
demands  always  increases  the  complication  of  a  trial,  for  it  intro- 
duces new  elements  of  complication  without  removing  any  old 
ones.  In  short,  while  the  law  can  by  its  own  operation  cause  cross 
demands  to  extinguish  each  other,  so  that  the  difference,  if  any,  be- 
tween them  will  alone  remain  due,  it  cannot  ascertain  the  amount 
of  such  difference,  if  any,  nor  in  favor  of  which  party  it  exists. 
On  the  other  hand,  an  agreement  between  two  parties  to  set  off 
their  mutual    demands  against  each  other  will  seldom  be  made, 

good  satisfaction  ;  and  yet  the  ;[{^20  was  a  chose  in  action,  and  no  payment  was  made 
thereof  but  by  way  of  retainer  or  discharge."  Co.  Litt.  213  a.  "  If  the  condition  of  an 
obligation  be  to  pay  100  marks  at  a  day,  and  at  the  day  the  obligor  and  obligee  account 
together  at  another  place,  and  because  the  obligee  owes  to  the  obligor  ;,^20  by  another 
contract,  the  obligee  allow  the  ^^20  in  payment  of  the  100  marks,  this  is  a  good  satisfaction 
of  the  condition,  for  this  is  all  one  as  if  the  obligor  had  paid  the  obligee,  and  he  had  repaid 
him.  12  R.  2,  Barre,  243.  This  is  a  payment  by  way  of  retainer."  i  Rol.  Abr.  471,  pi.  5. 
"  The  way  in  which  an  agreement  to  set  one  debt  against  another  of  equal  amount, 
and  discharge  both,  proves  a  plea  of  payment,  is  this:  If  the  parties  met,  and  one  of 
them  actually  paid  the  other  in  coin,  and  the  other  handed  back  the  same  identical  coin 
in  payment  of  the  gross  debt,  both  would  be  paid.  When  the  parties  agree  to  consider 
both  debts  discharged  without  actual  payment  it  has  the  same  effect,  because  in  contem- 
plation of  law  a  pecuniary  transaction  is  supposed  to  have  taken  place  by  which  each 
debt  was  then  paid."  Per  Lord  Campbell,  C.  J.,  in  Livingstone  v.  Whiting,  15  Q.  B.  722. 
And  see,  to  the  same  effect,  Callander  v.  Howard,  10  C.  B.  290. 


114         A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

unless  the  amount  of  such  demands  be  known ;  and,  even  if  their 
amount  be  known,  such  an  agreement  will  seldom  be  made  except 
by  implication,  and  as  an  incident  to  or  a  consequence  of  some 
other  agreement  or  transaction.  Thus,  an  agreement  between  two 
parties  to  set  off  mutual  demands,  as  to  the  amount  of  which  there 
has  never  been  any  dispute  or  uncertainty,  will  seldom  be  made, 
except  as  incidental  to  the  payment  of  the  difference  between 
them,  and  even  then  the  only  evidence  of  such  an  agreement  will 
commonly  be  found  in  the  fact  that  the  parties  treat  such  differ- 
ence as  the  only  debt  existing  between  them.  So  also  an  agree- 
ment between  two  parties  to  set  off  nmtual  demands,  the  amount 
of  which  has  been  the  subject  of  dispute  or  uncertainty,  will  seldom 
be  made,  except  as  a  consequence  of  the  ascertainment  and  settle- 
ment of  such  amount;  and  even  then  the  only  evidence  of  such  an 
agreement  will  commonly  be  found  in  the  fact  that  the  parties 
strike  a  balance,  and  treat  such  balance  as  the  only  debt  existing 
between  them.  Hence,  a  set-ofTof  mutual  demands,  by  agreement 
between  the  parties  thereto,  so  far  from  introducing  any  new 
element  of  complication,  removes  any  complication  which  pre- 
viously existed,  and,  so  far  from  giving  to  either  party  a  right 
to  go  into  equity,  it  takes  away  any  such  right  that  previously 
existed. 

When  an  account  is  stated  of  cross  demands  between  two  parties, 
and  a  balance  struck,  it  seems  that  the  implied  agreement  to  set 
ofT  the  cross  demands  against  each  other  will  remain  in  force, 
though  the  statement  of  account  be  afterwards  impeached  and  set 
aside,  e.g.,  on  the  ground  of  fraud ;  and  the  effect,  therefore,  will 
be  the  same  as  if  an  agreement  had  been  made  to  set  off  the  cross 
demands  against  each  other  without  any  statement  of  account,  or 
as  if  the  cross  demands  had  been  set  off  against  each  other  by 
mere  operation  of  law ;  and  hence,  though  a  balance  only  will 
remain  due,  yet,  before  such  balance  can  be  recovered,  the  amount 
of  it  must  be  ascertained,  and  to  which  of  the  two  parties  it  is  due  ; 
and  therefore  the  agreement  to  set  off  the  cross  demands  against 
each  other  may  result  in  the  necessity  of  ascertaining,  in  a  single 
suit,  the  amount  due  to  each  party  from  the  other  before  any  set- 
off was  made,  and  thus,  by  increasing  the  complication,  confer 
jurisdiction  upon  equity. 

An  agreement  between  two  parties  to  set  off  cross  demands 
against  each  other  may,  however,  relate  to  cross  demands  not  then 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         11$ 

existing,  but  thereafter  to  arise ;  and  in  that  case  it  seems  that  the 
agreement  will  operate  upon  the  cross  demands  and  cause  their 
mutual  extinguishment  the  moment  they  arise,  provided  neither 
of  the  parties  have  given  any  notice  to  the  other  to  the  contrary; 
for,  in  the  absence  of  such  notice,  the  parties  will  be  conclusively 
presumed  to  remain  of  the  same  mind  they  were  of  when  the 
agreement  was  made,  and  therefore  the  effect  will  be  the  same  as 
if  the  agreement  had  been  made  at  the  moment  when  the  cross 
demands  arose.  It  is  as  true,  however,  of  such  an  agreement  as 
it  is  of  an  agreement  to  set  off  existing  cross  demands,  that  it  will 
seldom  be  made  otherwise  than  by  implication;  and  the  implica- 
tion in  this  latter  case  will  generally  arise,  if  at  all,  from  the  nature 
and  the  course  of  the  dealing  between  the  parties.  Moreover,  the 
agreement  will  arise  the  moment  it  is  called  for  by  circumstances, 
i.e.,  the  moment  that  cross  demands  come  into  existence,  and  not 
till  then ;  and  as  often  as  new  cross  demands  arise,  a  new  agree- 
ment to  set  them  off  against  each  other  will  arise.  The  cross 
demands,  therefore,  and  the  agreement  to  set  them  off  against  each 
other,  will  always  co-exist,  and  hence  there  can  be  no  doubt  that 
the  agreement  will  operate  upon  the  cross  demands  and  cause 
their  actual  extinguishment.  And  yet  the  amount  of  the  respective 
cross  demands  will  remain  to  be  ascertained  ;  and  therefore  such 
an  agreement  will  have  the  same  effect  in  increasing  complication 
as  an  extinguishment  of  cross  demands  by  operation  of  law. 

It  is,  it  seems,  on  the  principle  just  explained,  that  cross  de- 
mands between  a  banker  and  his  customer  extinguish  each  other. 
Indeed,  if  there  be  cross  demands  between  a  banker  and  his  cus- 
tomer, there  can  be  no  doubt  that  they  extinguish  each  other,  and 
they  can  do  this  only  in  the  mode  just  explained  or  by  operation 
of  law.  Do  cross  demands,  then,  arise  between  a  banker  and  his 
customer  in  the  ordinary  course  of  business?  That  every  deposit 
by  a  customer  with  his  banker  creates  a  debt  in  favor  of  the  for- 
mer and  against  the  latter,  of  course  there  is  no  doubt.  Does 
every  payment  by  the  banker  of  a  check  drawn  by  the  customer 
create  a  debt  in  favor  of  the  former  and  against  the  latter?  The 
general  opinion  seems  to  have  been  that  it  does  not,  but  that  it 
constitutes  a  payment /w  tanto  of  the  debt  due  from  the  banker 
to  the  customer.^     This  opinion,  however,  seems  not  to  be  well 

1  See  Devaynes  v.  Noble,  i  Mer.  529. 


Il6         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

founded.  The  question  does  not  depend  upon  the  intention  of 
the  parties,  but  upon  the  legal  operation  of  a  check.  A  check, 
which  is  in  effect  a  bill  of  exchange,  docs  not  call  for  the  payment 
of  a  debt,  but  for  the  payment  of  the  sum  of  money  named  in  the 
check  on  the  customer's  account;  and  therefore  the  payment, 
when  made,  constitutes  a  debt  for  money  paid  by  the  banker  to 
the  customer's  use.  The  check  calls  for  the  payment  by  the 
banker  of  the  amount  named  in  the  check,  without  regard  to 
the  state  of  the  account  between  the  banker  and  the  customer; 
but  if  the  payment  which  it  calls  for  were  the  payment  of  a  debt 
due  from  the  banker  to  the  customer,  it  would  be  payable  only  to 
the  extent  of  the  debt  then  actually  due  from  the  former  to  the 
latter,  and  any  payment  beyond  that  amount  would  be  made  with- 
out authority.  Indeed,  payment  of  a  check  by  a  banker  would 
be  an  admission  by  him  that  so  much  was  due  from  him  to  the 
customer.  Moreover,  on  the  supposition  just  made,  a  check 
would  operate  as  an  assignment /;-<?  tanto  of  the  debt  due  from  the 
banker  to  the  customer,  and  would  thus  give  to  the  payee  a  right 
in  equity  to  recover  against  the  banker  without  any  acceptance  of 
the  check  by  the  latter;  and  yet  it  is  well  known  that  a  check 
does  not  so  operate. 

Upon  the  whole,  therefore,  it  seems  that  the  items  on  the 
banker's  side  of  his  account  with  his  customer  constitute  cross 
demands  in  his  favor,  or  rather  that  they  would  do  so  but  for  the 
fact  that  they  are  set  off  against  the  items  in  the  customer's  favor 
the  moment  that  they  come  into  existence.^  However,  it  is  not 
material  to  the  present  inquiry  whether  they  constitute  cross 
demands  or  payments,  for  in  either  case  they  must  equally  be 
taken  into  account  in  considering  whether  a  case  between  a  banker 
and  his  customer  is  sufficiently  complicated  to  warrant  the  filing  of 
a  bill  in  equity. 

Though  an  agreement  between  two  parties  that  their  mutual 
demands  shall  be  set  off  against  each  other  will  cause  an  actual 
set-off  to  take  place,  yet  an  agreement  between  two  parties  that 
their  mutual  demands  shall  be  extinguished  will  not  cause  an  ex- 


1  It  is  scarcely  necessary  to  observe  that,  as  a  banker  credits  his  customer  with  all  de- 
posits made  by  the  latter,  so  he  debits  him  with  all  checks  drawn  by  the  customer  on  the 
banker,  and  paid  bythelaUer.  But  for  the  reason  stated  in  a  previous  note  (p.  iii.n.  i), 
no  inference  can  be  drawn  from  this  circumstance  that  the  items  on  the  debit  side  of  the 
customer's  account  constitute  cross  demands,  and  not  payments  of  debts. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         I  17 

tinguishment  to  take  place,  unless  the  agreement  can  be  construed 
as  an  agreement  to  make  a  set-off;  for  no  debt  or  demand  can  be 
extinguished  by  a  mere  agreement.  When,  therefore,  an  extin- 
guishment of  cross  demands  takes  place  by  way  of  set-off,  it  is 
immaterial,  in  respect  to  the  extinguishment,  whether  the  cause  of 
the  set-off  be  the  agreement  of  the  parties  or  the  operation  of  law. 
It  follows,  therefore,  that  the  extent  of  the  extinguishment  which 
takes  place  when  cross  demands  are  set  off  against  each  other,  and 
hence  the  question  to  which  of  the  parties,  if  to  either,  a  balance 
remains  due,  as  well  as  the  amount  of  such  balance,  depend  upon 
the  amounts  actually  due  from  the  parties  respectively  to  each 
other  before  the  set-off  was  made,  and  not  upon  the  amounts 
agreed  by  the  parties  to  be  due.  When,  for  example,  an  account 
is  stated  of  cross  dem.ands  between  two  parties  and  a  balance 
struck,  the  statement  of  the  account  has  no  effect  upon  the  cross 
demands,  and  hence  it  does  not  follow  that  the  balance  struck  is  the 
true  balance,  nor  does  the  striking  of  it  make  it  the  true  balance. 
And  yet  the  statement  of  the  account  will  be  binding  as  an  agree- 
ment (assuming,  of  course,  that  it  has  the  ordinary  requisites  of  a 
binding  agreement),  and  hence  the  party  in  whose  fav^or  the  balance 
is  struck  may  recover  such  balance  by  reason  of  the  agreement,  but 
he  must  do  so  by  an  action  on  the  agreement,  and  if  he  attempt 
to  recover  it  as  a  part  of  the  old  debt  still  remaining  due  to  him, 
the  defendant  may  show  that  in  truth  the  old  debt  has  been  wholly 
paid  by  means  of  the  set-off.  So,  if  either  of  the  parties  sue  the 
other  for  any  part  of  his  old  debt  in  violation  of  the  agreement,  the 
defendant  will  not  be  able  to  set  up  the  account  stated  as  showing 
that  the  debt  sued  for  is  not  due,^  and  his  only  resource  will  be 
either  to  obtain  an  injunction  against  the  action,  or  to  set  up  the 
agreement  as  a  defence  by  way  of  preventing  circuity  of  action.. 

From  what  has  been  said  in  the  preceding  paragraph,  it  follows 
that,  in  respect  to  the  extinguishment  of  cross  demands,  there  is  no 
difference  in  law  between  the  striking  of  a  balance  as  the  result  of 
stating  an  account,  i.e.,  of  ascertaining  the  amounts  actually  due  from 
the  parties  respectively  to  each  other,  and  the  striking 4Df  a  balance 
as  the  result  of  a  compromise  of  uncertain,  doubtful,  or  disputed 
demands.  In  either  case  the  balance  struck  may  be  right,  and 
in  either  case  it  may  be  wrong,  the  true  balance  depending  in 

1  Therefore,  in  Perry  v.  Attwood,  6  El.  &  Bl.  691,  the  seventh  plea  was  bad;  and 
see  cases  cited  infra,  p.  124,  nn.  2  and  3. 


Il8        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

each  case,  not  upon  the  statement  of  account  or  the  compromise, 
but  upon  the  facts  which  existed  before  the  account  was  stated  or 
the  compromise  made.  In  respect,  however,  to  the  agreement 
upon  which  the  striking  of  the  balance  is  based,  there  is  a  material 
difference  between  a  statement  of  account  and  a  compromise.  The 
former  is  a  regular  and  ordinary  transaction,  which  generally  takes 
place  periodically  and  which  is  regarded  by  the  parties  to  it  as 
little  more  than  routine.  The  latter,  on  the  other  hand,  is  entirely 
special  in  its  nature.  The  former  is  in  itself  not  an  agreement, 
but  a  transaction  which  implies  an  agreement;  and  the  only 
agreement  which  often  accompanies  it  is  such  as  it  carries  with 
it  by  implication.  A  compromise,  on  the  other  hand,  is  in  itself 
an  agreement  and  nothing  else,  and  this  is  equivalent  to  saying 
that  it  is  an  express  agreement.  What  the  agreement  is,  therefore, 
in  the  case  of  an  account  stated,  generally  depends  entirely  upon 
implication  or  construction,  and  this  implication  or  construction  is 
of  course  always  the  same ;  and  hence  the  question  is  one  of  law. 
In  the  case  of  a  compromise,  on  the  other  hand,  what  the  agree- 
ment is  depends  entirely  upon  what  the  parties  have  expressed, 
there  being  no  basis  upon  which  to  make  any  implication  or  con- 
struction ;  and  hence  the  question  is  one  of  fact. 

What  agreement  then  is  to  be  implied  in  the  case  of  an  account 
stated?  Clearly  it  must  be  an  agreement  that  the  account  stated 
shall  be  taken  to  be  true,  at  least  prima  facie,  for  otherwise  the 
stating  of  an  account  would  go  for  nothing.  On  the  other  hand, 
it  clearly  would  be  wrong  to  imply  an  agreement  that  the  account 
stated  shall  be  taken  to  be  true  absolutely,  i.e.,  that  neither 
party  shall  be  permitted  to  show  that  it  contains  any  mistakes 
or  errors,  or  that  anything  has  been  omitted  from  it  which  ought  to 
have  been  included  in  it;  for  the  object  of  stating  an  account  is  not 
to  make  a  bargain,  but  to  find  out  the  truth.  When  an  account 
has  been  stated,  therefore,  the  parties  to  it,  if  they  be  honest,  sup- 
pose it  to  be  true,  and  hence  any  implication  of  an  agreement 
respecting  it  must  be  on  the  supposition  of  its  being  true.  If, 
therefore,  that  supposition  fails,  the  agreement  also  fails.  How, 
then,  can  an  account  stated  be  given  that  binding  effect,  without 
which  it  would  be  a  nullity,  and  yet  be  prevented  from  having  a 
binding  effect  which  the  parties  to  it  never  contemplated,  and 
which  therefore  would  work  injustice?  Clearly  by  implying  a 
conditional  agreement,  namely,  that  the  account  stated  shall  be 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        II9 

taken  to  be  true,  unless  (and  except  so  far  as)  one  of  the  parties 
to  it  shall  prove  mistakes  or  errors  in  it,  or  omissions  from 
it.  That  such  a  condition  ought  to  be  implied  is  proved  by  the 
prevailing  practice  of  placing  at  the  foot  of  every  account  the 
words,  "  Errors  and  omissions  excepted,"  —  a  practice  which  is 
believed  never  to  be  departed  from,  except  through  inadvertence, 
or  because  an  express  exception  is  supposed  to  be  unnecessary.^ 
In  the  case  of  a  compromise,  on  the  other  hand,  as  there  is  no 
implied  agreement,  so  there  can  be  no  implied  condition;  and, 
therefore,  in  the  absence  of  an  express  condition,  a  compromise 
is  absolutely  binding.  Moreover,  such  a  condition  as  is  implied 
in  the  case  of  an  account  stated,  would  be  inconsistent  with  the 
nature  of  a  compromise  ;  for  a  compromise  is  a  bargain,  the  object 
of  which  is  to  supersede  the  necessity  of  investigating  the  facts 
which  are  the  subject  of  the  compromise,  —  a  bargain,  the  very 
essence  of  which  consists  in  an  agreement  that  certain  facts, 
supposed  to  be  uncertain  or  doubtful,  shall  be  conclusively  taken, 
as  between  the  parties  to  the  agreement,  to  be  thus  and  so.  Of 
course  the  motive  of  each  party  in  making  a  compromise  is  the 
promotion  of  his  own  interests,  namely,  by  obtaining  better  terms 
than  he  thinks  he  has  an  even  chance  of  obtaining  otherwise,  or 
by  saving  trouble  and  expense,  or  in  both  of  these  ways  ;  but  what- 
ever the  motive,  each  party  acts  upon  his  own  knowledge  and 
judgment  as  to  all  doubtful  facts,  and  he  acts  at  his  peril.^ 

1  "  It  is  common  to  add  to  a  statement  of  accounts, '  Errors  excepted  ; '  I  think  that 
such  exception  must  be  understood,  even  where  not  expressed."  Per  Lord  Campbell, 
C.  J.,  in  Perry  v.  Attwood,  6  El.  &  Bl.  691,  700. 

2  "  Parties  having  accounts  between  them  may  meet  and  agree  to  settle  those  accounts 
by  the  ascertainment  of  the  exact  balance ;  and,  if  they  mean  to  ascertain  the  exact  bal- 
ance, it  may  be  necessary  for  that  purpose,  and  probably  is  necessary  in  most  cases,  that 
vouchers  should  be  produced,  and  that  all  the  information  which  is  possessed  on  one 
side  and  the  other  should  be  furnished  in  the  settlement  of  those  accounts  ;  and,  if  it 
afterwards  turn  out  that  there  are  errors  in  the  account,  it  is  a  sufficient  ground  for  open- 
ing the  account  and  for  setting  it  right  in  a  Court  of  Equity.  If,  on  the  other  hand, 
persons  meet  and  agree  not  to  ascertain  the  exact  balance,  but  agree  to  take  a  gross 
sum  as  the  balance ;  a  sum  which  one  is  willing  to  pay,  and  the  other  is  content  to  receive 
as  the  result  of  those  accounts  ;  it  is  obvious  that  the  production  of  vouchers  is  entirely 
out  of  the  question,  and  errors  in  the  account  are  so  also,  for  the  very  object  of  the 
parties  is  to  avoid  the  necessity  for  producing  those  vouchers,  upon  the  assumption  that 
there  are  or  may  be  errors  in  the  account  so  settled ;  therefore,  it  is  either  an  account 
stated  and  settled  in  the  formal  sense  of  that  expression,  or,  it  is  the  case  of  a  settle- 
ment by  compromise.  In  either  case  it  may  be  vitiated  by  fraud."  Per  Lord  Kings- 
down,  in  McKcllar  v.  Wallace,  8  Moo.  P.  C.  378,  401-2. 


120         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

Of  course  the  same  transactions  may  be  the  subject  of  both  a 
statement  of  account  and  a  compromise;  for  the  parties  may  first 
state  an  account,  and  then  they  may  agree  that  the  account  so 
stated  shall  be  taken  as  absolutely  true;  but  in  that  case  the 
account  stated  is  entirely  superseded  by  the  compromise ;  and  as 
a  compromise  can  be  only  by  express  agreement,  of  course  a 
compromise  can  never  be  inferred  as  a  consequence  of  an  account 
stated. 

The  result,  therefore,  is  that,  while  a  compromise  can  be  im- 
peached only  for  fraud,  an  account  stated  can  be  impeached  either 
for  fraud  or  error.  If  either  a  compromise  or  an  account  stated 
be  impeached  for  fraud,  of  course  the  plaintiff  will  have  the  burden 
of  proof,  and  he  will  have  to  establish  fraud  at  the  hearing,  or  his 
bill  will  be  dismissed.  If  he  succeed  in  making  out  a  case  of 
fraud,  a  decree  will  be  made  setting  aside  the  compromise  or  the 
account  stated,  and  referring  the  cause  to  a  Master  to  take  an  ac- 
count, just  as  if  no  compromise  had  been  made,  or  no  account 
had  been  stated.^  If  an  account  stated  be  impeached  on  account 
of  errors  or  omissions,  the  plaintiff  will  also  have  the  burden  of 
proof,^  but  he  will  not  have  to  establish  errors  or  omissions  at 
the  hearing  of  the  cause.^  On  the  contrary,  he  will  be  entitled 
to  a  decree  as  of  course,  referring  the  cause  to  a  Master  to  take 
an  account;   but  the  Master  will  be  directed,  in  case  he  shall  find 

1  In  AUfreyz/.  AHfrey,  I  M.&G.  87,  Lord  Cottenham  said  (p.  93) :  "The  only  question 
in  this  cause  is,  whether  the  decree  should  be  for  an  open  account  generally,  or  a  decree 
to  surcharge  and  falsify.  Now  the  distinction  between  these  two  has  not  been  accu- 
rately observed  in  some  more  recent  cases.  But  if  you  look  to  the  earlier  cases,  you  will 
find  the  rule  clearly  laid  down.  In  the  case  of  Vernon  v.  Vawdry,  2  Atk.  119,  it  is  said  : 
'If  there  are  only  mistakes  and  omissions  in  a  stated  account,  the  party  objecting  shall 
be  allowed  no  more  than  to  surcharge  and  falsify.  But  if  it  appears  to  the  Court  that 
there  has  been  fraud  and  imposition,  the  decree  must  be,  that  the  whole  shall  be 
opened.'  ...  I  have  acted  upon  that  doctrine,  affirming  a  decree  of  Lord  Langdale's, 
in  Wedderburn  v.  Wedderburn,  4  M.  &  Cr.  41.  Now  it  is  quite  obvious,  that  that 
is,  strictly  speaking,  the  doctrine  and  principle  of  this  Court,  because,  if  a  transaction, 
whether  it  be  a  deed,  or  an  agreement,  or  an  account  stated  and  settled,  which  is  only 
an  agreement,  be  proved  to  be  fraudulent,  there  is  nothing  on  which  it  can  stand:  the 
transaction  itself  is  void."     See  also  Coleman  v.  Mellersh,  2  M.  &  G.  309. 

2  Dawson  ■v.  Dawson,  West,  171,  i  Atk.  I  ;  Pitz'.  Cholmondeley,  2  Ves.  565.  There 
is  a  distinction,  however,  between  errors  and  omissions.  As  to  errors,  the  burden  of 
proof  is  shifted  from  the  defendant  to  the  plaintiff  by  the  agreement  implied  by  the 
account  stated.  As  to  omissions,  on  the  other  hand,  the  burden  of  proof  simply  remains 
where  it  always  was,  namely,  with  the  plaintiff. 

3  This  is  because  the  items  of  an  account  are  never  investigated  at  the  hearing  of  the 
cause,  but  are  always  investigated  after  the  hearing  and  in  the  Master's  office. 


A   BRIEF  SURVEY  OF  EQUFTY  'yURISDICTlON.         121 

an  account  stated  between  the  parties,  to  let  the  same  stand,  but 
to  permit  the  plaintiff  to  surcharge  or  falsify  the  same.^  Under 
this  decree,  the  plaintiff  will  be  permitted  to  show  that  the  de- 
fendant ought  to  be  debited  with  certain  items  which  have  been 
omitted  from  the  account;  and  such  items  as  the  plaintiff  proves 
will  be  added  to  the  account  by  the  Master.  This  is  called  sur- 
charging the  account.2  The  plaintiff  will  also  be  permitted  to 
show  that  the  defendant  has  been  credited  in  the  accounts  stated 
with  certain  items  with  which  he  ought  not  to  be  credited; 
and  such  items  as  he  proves  to  be  erroneous  will  be  stricken  out 
by  the  Master."  This  is  called  falsifying  the  account.^  When 
the  evidence  is  all  in,  the  Master  will  make  up  the  account,  con- 
sisting of  the  account  stated,  with  such  additions  and  corrections 
as  the  proof  requires,  and  report  the  same  to  the  court. 

What  has  been  said  as  to  impeaching  an  account  stated  on  ac- 
count of  errors  or  omissions,  is  applicable  to  an  account  which 
has  been  stated  pursuant  to  an  obligation  to  account,  as  well  as  to 
an  account  stated  respecting  cross  demands,  or  respecting  de- 
mands, all  of  which  are  in  favor  of  the  same  creditor  and  against 
the  same  debtor,  except  that,  in  the  former  case,  the  account  stated 
is  a  thing  executed,  i.e.,  it  extinguishes  the  obligation  to  account, 
and  converts  the  balance  found  in  favor  of  the  obligee  into  a  legal 
debt,  without  regard  to  errors  or  omissions  ;  while  in  the  two  latter 
cases  the  account  stated  rests  merely  in  agreement,  especially  as 
regards  errors  or  omissions  ;   and  a  consequence  of  this  difference  is 

1  Kinsman  v.  Barker,  14  Ves.  579;  Fitzpatrick  v.  Mahony,  i  J.  &  La  T.  84.  The 
phrase  "  surcharge  and  falsify  "  is  derived  from  the  ancient  mode  of  accounting  in  equity, 
according  to  which  the  items  in  every  account  were  all  reduced  to  two  classes,  namely, 
items  of  charge  and  items  of  discharge.  This  mode  of  accounting  was  perfectly  adapted 
to  an  accounting  upon  a  bill  for  an  account,  but  it  was  not  so  well  adapted  to  an  account- 
ing upon  a  bill  of  equitable  assumpsit,  i.e.,  as  between  debtor  and  creditor.  When 
applied  to  this  latter  species  of  accounting,  the  items  of  charge  consisted  of  the  items 
which  made  up  the  indebtedness  of  the  defendant  to  the  plaintiff,  while  the  items  of  dis- 
charge consisted  of  the  payments  made  by  the  defendant,  with  any  other  items  of  defence. 
Under  this  system  a  plaintiff  and  a  defendant  could  not  both  be  accounting  parties  in  the 
same  account.  In  the  case,  therefore,  of  cross  demands,  as  the  plaintiff  and  the  defendant 
were  both  accounting  parties,  there  had  to  be  two  separate  accounts,  each  with  its  two 
classes  of  items. 

This  mode  of  accounting  was  abolished  in  England  by  the  6ist  order  of  April  3, 1828, 
by  which  it  was  provided  "  that  all  parties  accounting  before  the  Masters  shall  bring  in 
their  accounts  in  the  form  of  debtor  and  creditor."     See  Sanders'  Orders,  725. 

2  Pit  V.  Cholmondeley,  2  Ves.  565. 
*  Pit  V.  Cholmondeley,  supra. 


122        A   BRIEF  SURVEY  OF   EQUITY  JURISDICTION. 

that  an  account  stated,  in  the  former  case,  can  be  impeached  for 
errors  or  omissions  in  equity  alone,  while,  in  the  two  latter  cases, 
so  far  as  it  can  be  proved  to  be  erroneous  or  defective,  it  is  invalid 
both  at  law  and  in  equity.^ 

It  remains  to  speak  of  an  important  distinction  between  an  ac- 
counting pursuant  to  an  obligation  to  account,  and  a  statement 
of  accounts  respecting  cross  demands,  —  a  distinction  which  has 
already  been  alluded  to  more  than  once,  but  which  requires  to  be 
examined  with  more  particularity.  An  accounting  pursuant  to  an 
obligation  to  account  is  an  extinguishment  of  one  cause  of  action, 
and  the  creation  of  another  in  lieu  of  it.  It  is,  therefore,  at  once  a 
defence  and  a  cause  of  action,  —  a  defence  to  an  action  on  the  obli- 
gation to  account,  and  a  cause  of  action  to  recover  the  balance  found 
in  the  plaintiff's  favor,  which  balance  is  a  debt  created  by  the  ac- 
counting. A  statement  of  accounts  respecting  cross  demands,  on 
the  other  hand,  extinguishes  nothing  of  the  original  demands,  ex- 
cept indirectly,  namely,  by  means  of  a  set-off,  and  creates  no  new 
right  of  action,  except  a  right  of  action  on  an  executory  agree- 
ment, and  the  balance  which  is  found  in  favor  of  one  of  the  parties 
is  not  a  new  debt,  but  a  portion  of  that  party's  original  debt, 
namely,  so  much  of  it  as  has  not  been  extinguished  by  the  set-off. 
One  consequence  of  this  distinction  is,  that,  in  an  action  or  suit  to 
recover  a  balance  found  in  the  plaintiff's  favor,  such  balance  should 
be  described,  in  the  one  case,  as  a  debt  due  upon  an  account  stated, 
in  the  other  case,  as  a  debt  due  for  the  same  cause  as  the  plaintiff's 
original  demand.  Another  consequence  is  that  if  a  claim  be  sued 
for  which  has  been  extinguished,  either  by  or  in  consequence  of 
the  statement  of  an  account,  the  defence  will  be,  in  the  one  case, 
an  account  stated,  in  the  other,  payment.  Clear  as  this  distinction 
is  in  principle,  it  has  never  obtained  any  recognition  in  equity,  — 
a  fact  which,  considering  that  no  distinction  between  the  two  kinds 
of  accounting  has  ever  been  recognized  in  equity,  is  not  surprising. 
What  is  surprising,  however,  is  the  fact  that  the  distinction  in 
question  has  obtained  only  partial  recognition  at  law,  and  the 
further  fact  that  there  is  an  absolute  inconsistency  between  the 
recognition  of  it  at  law,  on  the  one  hand,  and  the  failure  to  recog- 
nize it,  on  the  other  hand.  Thus,  it  is  perfectly  clear  that  "  ac- 
counts stated  "  was  never  a  good  plea  at  law,  except  to  an  action 


1  Therefore,  in  Perry  v.  Attwood,  6  El.  &  Bl.  691,  if  the  seventh  plea  had  been 
good,  the  replication  would  have  been  a  good  legal  answer  to  it. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 23 

of  account  (in  which  case  it  took  the  name  o{  plene  compictavit)  ; 
and  of  course  it  follows  that  no  action  should  lie  upon  an  account  1 
stated,  unless  the  account  stated  be  one  which  might  formerly  ' 
have  been  enforced  by  an  action  of  account.  Yet,  with  extraor- 
dinary inconsistency,  and  through  an  extraordinary  perversion  of 
the  indebitatus  count  in  assumpsit  upon  an  account  stated,  it  is  held 
that  that  count  is  available,  not  merely  in  all  cases  where  an  account 
has  been  stated  respecting  cross  demands,  but  in  all  cases  where 
there  has  been  even  a  verbal  admission  by  the  defendant  that  he  owed 
a  certain  sum  to  the  plaintiff,  though  there  have  never  been  any  cross 
demands,  nor  any  formal  statement  of  account  between  the  parties,  j 
That  this  is  a  perversion  of  the  count  upon  an  account  stated  there 
can  be  no  doubt.  That  count  had  its  origin  in  the  action  of  debt 
for  arrearages  of  account,  —  a  form  of  action  (or  rather  a  form 
of  count)  devised  expressly  and  exclusively  for  cases  in  which  a 
balance  had  been  found  in  the  plaintiff's  favor  upon  an  accounting 
by  the  defendant  pursuant  to  an  obligation  to  account,  and  such 
balance  remained  unpaid,  i.e.,  for  cases  in  which  the  proper  action 
would  have  been  account,  but  for  the  fact  that  there  had  already 
been  an  accounting,  and  hence  an  action  of  account  would  be 
met  by  a  plea  of  plcnc  computavit.  When  the  action  of  debt 
on  simple  contract  came  to  be  superseded  by  indebitatus  assump- 
sit, the  count  in  debt  for  arrearages  of  account  was  converted  into 
Tfie^  count  upon  an  account  stated  in  assumpsit;  and,  therefore,  the 
latter  should  have  remained  subject  to  the  same  limitations  to 
which  the  former  was  subject;  and  so  it  did  for  a  tinic.^  But 
with  the  disuse  of  the  action  of  account,  the  proper  function  of 
the  count  upon  an  account  stated  was  lost  sight  of,  and  hence  its 
proper  limitations  soon  came  to  be  disregarded.  One  of  the  minor 
evils  consequent  upon  this  departure  from  principle  has  been 
that  the  count  upon  an  account  stated  has  ceased  to  be  (what  it 
once  was)  a  test  of  the  cases  in  which  an  action  of  account  would 
formerly  lie,  and  in  which  therefore  a  bill  for  an  account  will  now 
lie. 

When  the  count  upon  an  account  stated  had  been  thus  extended 
beyond  its  true  bounds,  consistency  required  that  the  defence  of 

1  Hamond  v.  "Ward,  Styles,  287,  i  Lilly's  Pr.  Reg.  30,  decided  in  Trinity  Term, 
1651.  The  form  of  the  action  appears  to  have  been  debt  upoH  an  account  stated,  but 
the  view  of  the  court  clearly  was  not  based  upon  any  supposed  distinction  between 
debt  and  assumpsit. 


124        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX. 

account  stated  should  be  extended  in  like  manner ;  for  whenever 
a  plaintifif  is  permitted  to  sue  upon  an  account  stated  as  a  new 
cause  of  action,  he  ought  to  be  precluded  from  suing  upon  the 
old  cause  of  action  which  was  the  subject  of  the  accounting;  and 
accordingly,  in  one  case,^  in  the  time  of  Chief  Justice  North,  it 
was  held  to  be  a  good  plea  to  an  action  of  indebitatus  assumpsit 
that  an  account  had  been  stated  respecting  the  debts  for  which  the 
action  was  brought ;  but  that  decision  was  overruled  in  the  time  of 
Lord  Holt,  the  latter  saying  of  it:  "The  case  quoted  out  of  the 
Moderns  was  the  first  of  this  kind,  and  by  my  consent  shall  be 
the  last.  And  to  plead  it  as  an  account  is  but  argumentative  of 
payment  (which  is  direct),  and  therefore  not  to  be  allowed."  ^ 
Other  cases, ^  which  soon  followed,  established  conclusively  that 
account  stated  is  no  plea,  except  to  an  action  of  account;  and 
yet,  in  every  case  in  which  it  was  so  decided,  the  court  would 
have  held  that  the  plaintiff  might  have  declared  upon  the  account 
stated,  and  that  the  declaration  upon  it  would  have  been  supported 
by  the  evidence.  And  this  strange  inconsistency  has  continued  to 
exist  to  this  day,  and  that  too  without  ever  having  attracted 
attention. 

1  Milward  v.  Ingram,  i  Mod.  205,  2  Mod.  43,  Freem.  195.  North,  C.  J.,  said  {2 
Mod.  44)  :  "  There  are  two  demands  in  the  declaration,  to  which  the  defendant  pleads 
an  account  stated,  so  that  the  plaintiff  can  never  after  have  recourse  to  the  first  contract, 
which  is  thereby  merged  in  the  account.  If  A  sell  his  horse  to  B  for  £,\o,  and,  there 
being  divers  other  dealings  between  them,  they  come  to  an  account  upon  the  whole,  and 
B  is  found  in  arrear  £k^,  K  must  bring  hio  insimul  comptitassent ;  for  he  can  never 
recover  upon  an  indebitatus  assumpsit." 

2  May  V.  King,  12  Mod.  538. 

8  Atherley  7'.  Evans,  Sayer,  269;  Roades  z*.  Barnes,  i  Burr.  9;  Thomas  z*.  Heathom, 
2  B.  &  Cr.  477;  Callander  v.  Howard,  10  C.  B.  290. 


ARTICLE     VI.* 


VI. 

Creditors'  Bills. 

TT  was  stated  in  a  former  article  ^  that  there  are  three  important 
•^  classes  of  bills  in  equity  which  are  founded  upon  contracts  or 
obligations,  and  yet  are  not  called  bills  for  specific  performance ; 
namely,  bills  for  an  account,  bills  of  equitable  assumpsit,  and 
creditors'  bills.  The  first  and  second  of  these  have  already  been 
treated  of,  and  it  is  now  proposed  to  treat  of  the  third. 

A  creditor's  bill  is  a  bill  filed  by  a  creditor  of  a  deceased 
debtor  against  the  personal  or  the  real  representative,  or  against 
the  personal  and  the  real  representatives,  of  the  latter,  to  compel 
payment  of  the  debt."''  The  jurisdiction  of  equity  over  such  bills 
depends  entirely  upon  the  single  fact  of  the  debtor's  death ;  for 
against  a  living  debtor,  as  such,  equity  never  has  jurisdiction, 
while  against  the  representatives  of  a  deceased  debtor  equity 
always  has  jurisdiction  {i.e.,  in  England).  What  is  there  then  in 
the  mere  fact  of  a  debtor's   death  to  give  to  his  creditors  a  right 


1  4  Harv.  L.  Rev.  99. 

2  See  supra,  p.  74. 

8  It  is  scarcely  necessary  to  remind  the  intelligent  reader  that,  in  some  (perhaps 
many)  of  our  States,  the  term  "creditor's  bill  "  is  commonly  applied  to  a  very  different 
kind  of  bill  from  that  which  is  the  subject  of  the  present  article  ;  uamely,  a  bill  filed  by  a 
judgment  creditor,  whose  execution,  issued  upon  the  judgment,  has  been  returned  un- 
satisfied, in  whole  or  in  part,  to  obtain  satisfaction  of  the  judgment  out  of  assets  of  the 
judgment  debtor  which  cannot  be  taken  upon  execution.  It  will  be  found  convenient 
to  distinguish  these  two  classes  of  bills  from  each  other,  by  calling  the  latter  "judgment 
creditors'  bills." 


126        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

to  call  upon  equity  to  assist  them  in  enforcing  payment  of  their 
debts?  In  order  to  answer  this  question  satisfactorily  it  will  be 
necessary  to  ascertain  what  obstacles  a  creditor  is  liable  to  en- 
counter, as  a  consequence  of  his  debtor's  death,  in  attempting 
to  enforce  payment  of  his  debt  by  an  action  at  law. 

During  the  life  of  a  debtor,  the  only  remedy  of  which  his 
creditor  as  such  can  avail  himself  is  against  the  person  of  the 
debtor.  It  is  true  that,  at  the  present  day,  a  debtor's  property 
generally  constitutes  the  only  means  by  which  his  creditor  can 
enforce  payment  of  his  debt;  but  it  is  only  by  means  of  process 
against  a  debtor's  person  that  his  property  can  be  reached.  In 
short,  the  creditor  must  obtain  a  judgment  for  his  debt  against  the 
debtor  personally  before  he  can  compel  payment  of  the  debt  out 
of  his  debtor's  property.  When,  therefore,  the  debtor  dies,  the 
creditor's  remedy  is  gone.  The  debtor's  property,  to  be  sure, 
remains,  but  the  creditor  cannot  touch  it  unless  the  law  furnishes 
him  with  some  new  remedy.  Indeed,  when  a  debtor  dies,  his 
debts  would  all  die  with  him  did  not  positive  law  interpose  to  keep 
them  alive ;  for  every  debt  is  created  by  means  of  an  obligation 
imposed  upon  the  debtor,  and  it  is  impossible  that  an  obligation 
should  continue  to  exist  after  the  obligor  has  ceased  to  exist. 
Whenever,  therefore,  a  debtor  dies,  positive  law  has  to  interpose, 
first,  to  keep  his  debts  alive  ;  and,  secondly,  to  provide  his  creditors 
with  a  new  remedy  against  his  property.  What  is  the  nature  of  the 
remedy  which  positive  law  thus  provides?  If  the  question  were  a 
modern  one,  or  if  it  were  governed  by  modern  ideas,  we  might 
expect  a  remedy  to  be  provided  which  would  be  analogous  to  that 
which  is  provided  against  a  bankrupt  debtor  or  against  an  insol- 
vent corporation.  In  other  words,  we  might  suppose  that,  in  case 
the  debts  owing  by  a  deceased  debtor  were  not  promptly  paid, 
some  court  would  be  authorized,  on  the  application  of  his  cred- 
itors, to  take  his  property  into  its  own  hands,  and  apply  it  to  the 
payment  of  his  debts,  giving  the  surplus,  if  any,  to  the  persons 
entitled  to  receive  it.  The  question,  however,  is  not  a  modern 
one,  nor  is  it  governed  by  modern  ideas.  On  the  contrary,  it  is  as 
old  as  the  law  itself,  and  the  law  relating  to  it  is  so  bound  up  with 
the  habits  and  customs  of  the  people  as  not  easily  to  admit  of 
change.  Accordingly,  we  shall  find  that  the  remedy  provided  by 
law  for  the  creditors  of  deceased  debtors  is  for  the  most  part  very 
ancient;  that,  while  it  has  been  subject  to  changes,  the  changes  in 
it  have  been  very  slow  and  gradual;  and  that  it  is  almost  a  total 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         12/ 

Stranger  to  modern  ideas,  with  the  exception  of  such  as  have  been 
infused  into  it  by  equity. 

By  the  Roman  law,  every  human  being  who  had  rights  (other 
than  such  as  were  merely  personal),  or  was  subject  to  obligations 
or  duties  (other  than  such  as  were  merely  personal),  had  two  per- 
sonalities {personas),  one  natural,  the  other  legal,  artificial,  and  ficti- 
tious ;  and  it  was  in  the  latter  that  his  rights  were  vested,  and  upon 
the  latter  that  his  obligations  and  duties  were  imposed.  It  was  a 
peculiarity  of  the  legal  personality  that,  being  the  creature  of  law,  it 
continued  to  exist  so  long  as  there  was  any  reason  for  its  existence. 
It  was  not  affected,  therefore,  by  the  death  of  the  natural  person, 
but  continued  its  existence  in  the  natural  person's  successor  or 
heir  (^hccrcs^}  It  followed,  therefore,  that  every  natural  person 
who  had  rights,  or  was  subject  to  obligations  or  duties,  at  the  time 
of  his  death,  necessarily  had  a  successor  or  heir,  who  possessed  all 
his  rights  and  was  subject  to  all  his  obligations  and  duties.  More- 
over, every  person's  successor  or  heir  was  either  such  person  as  he 
himself  appointed  by  his  will  {JicBres  f actus),  or,  if  he  made  no 
appointment,  such  person  as  was  designated  by  law  (JicBrcs  natics). 
An  heir  designated  by  law  became  such  for  his  own  benefit  alone. 
An  heir  appointed  by  will  was  required  to  pay  such  legacies  as 
were  given  by  the  will,  subject  to  which  he  also  took  the  inheri- 
tance tor  his  own  benefit.  In  respect  to  the  obligations  and  duties 
to  which  the  deceased  was  subject  at  the  time  of  his  death,  there 
was  no  difference  between  the  Jiceres  factus  and  the  JicErcs  natus ; 
for  such  obligations  and  duties  fell,  necessarily  and  by  operation 
of  law,  upon  the  one  and  the  other,  without  distinction.  So  com- 
pletely, indeed,  was  the  heir  of  the  deceased  person  identified  with 
the  deceased,  that  the  law  made  no  distinction  between  the  estate 
of  the  one  and  that  of  the  other,  nor  between  the  debts  of  the  one 
and  those  of  the  other.  If,  therefore,  an  insolvent  heir  succeeded 
to  a  solvent  inheritance,  the  creditors  of  the  heir  had  as  much 
right  to  be  paid  their  debts  out  of  that  inheritance  as  the  creditors 
of  the  deceased  had;  and  if  a  solvent  heir  succeeded  to  an  insol- 
vent inheritance,  the  creditors  of  the  deceased  had  as  much  right 
to  be  paid  out  of  the  heir's  own  estate  as  his  own  creditors  had  ; 
and  the  only  way  of  avoiding  this  last  consequence  of  becoming  a 
deceased  person's  successor  was  by  refusing  to  accept  the  suc- 
cession.2     It  will  be  seen,  therefore,  that  the  remedy  of  a  creditor 

1  See  Maine,  Ancient  Law  (4th  ed.)  1S1-8S. 

2  Justinian,  Inst.,  L.  2,  Tit.  19,  §  5  ;  Gaius,  L.  2,  §§  162  et  seq. 


128        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

of  a  deceased  debtor  was  very  simple  under  the  Roman  law,  i.e., 
he  sued  the  heir  of  the  deceased,  just  as  he  would  have  sued  the 
deceased  during  his  life,  and  with  the  same  consequences ;  and 
this  state  of  things  continued  without  material  change  throughout 
the  whole  period  of  the  Roman  law,  i.e.,  down  to  the  time  of  Jus- 
tinian. Justinian  introduced  one  important  change,  and  only  one, 
namely,  that  of  allowing  the  heir  the  benefit  of  inventory  {bcncfi- 
ciuni  inventarii)  ;  for  he  declared  that  such  heirs  as  chose  to  pre- 
pare and  file,  within  the  time  and  in  the  manner  directed  by  him, 
an  inventory  of  the  estate  of  the  deceased  should  be  liable  to  the 
creditors  of  the  latter  only  to  the  extent  of  such  estate.^  From 
this  time,  therefore,  an  heir  was  liable  under  the  old  law  or  the 
new,  according  as  he  did  or  did  not  comply  with  the  new  law.  If 
he  did,  he  incurred  a  liability  only  to  account  for  the  estate  of  the 
deceased ;  if  he  did  not,  he  remained  personally  liable  for  all  the 
debts  of  the  deceased  as  before.  If  an  heir  availed  himself  of 
the  new  law,  of  course  he  became  bound  to  keep  the  estate  of  the 
deceased  separate  from  his  own  estate. 

After  the  Roman  empire  became  Christian,  the  Church  by  slow 
degrees  obtained  control  of  the  administration  of  the  estates  of  all 
deceased  persons.  This  result  it  finally  accomplished  by  obtain- 
ing for  its  bishops  the  right  to  administer  the  estates  of  all  deceased 
persons  within  their  respective  dioceses.  In  this  way  it  came  to 
be  the  law,  throughout  Western  Christendom  at  least,  that  the 
heir  of  every  deceased  person  was  the  Ordinary,  i.e.,  the  bishop 
of  the  diocese.  This,  however,  did  not  mean  that  the  estates  of 
deceased  persons  were  administered  by  the  bishop  personally, — 
it  only  meant  that  they  were  administered  by  persons  appointed 
by  him,  who  derived  their  authority  from  him,  and  who  were 
accountable  to  him.  Nor  did  this  right  of  the  bishop  practically 
interfere  with  the  immemorial  right  of  every  person  to  appoint  his 
own  heir  by  will.  On  the  contrary,  this  latter  right  continued  to  be 
exercised  as  before,  the  only  difference  being  that  an  heir  appointed 
by  will  must  now  obtain  the  bishop's  sanction  before  he  could  act, 
—  a  sanction,  however,  which  was  seldom  withheld.^  It  thus  came 
about  that  the  estate  of  every  deceased  person  had  to  be  adminis- 
tered by  a  person  appointed  by  the  bishop  of  the  diocese.     If  the 


1  Inst.,  L.  2,  Tit.  19,  §  6 ;  Code,  L.  6,  Tit.  30,  §  22. 

2  By  the  law  of  England  the  bishop  was  bound  to  give  his  sanction,  and,  if  he  refused 
to  do  so,  a  mandamus  would  issue,     i  Williams,  Executors  (ist  ed.)  214. 


A   BRIEF  SURVEY  OF  EQUITY  yURTSDICT/OiV.        1 29 

person  so  appointed  was  nominated  in  the  will  of  the  deceased,  he 
came  to  be  known  as  the  executor  of  the  will  (^executor  tcstamcnti)  ; 
if  the  appointment  was  made  without  any  such  nomination,  he  was 
known  as  the  administrator  of  the  estate  of  the  deceased.  Practi- 
cally, therefore,  the  modern  executor  is  the  hceres  /actus,  as  the 
modern  administrator  is  the  hccres  natns,  of  the  Roman  law.  In 
strictness,  however,  as  already  stated,  the  original  right  of  adminis- 
tration is  in  the  bishop ;  and  this  appears  clearly  from  the  fact 
that  his  appointments  of  executors  and  administrators  always  take 
effect  as  grants.^ 

The  transfer  of  the  jurisdiction  over  the  estates  of  deceased 
persons  from  the  secular  to  the  ecclesiastical  authorities  indirectly 
brought  about  two  material  changes:  first,  heirship  ceased  to  be 
a  private  right,  and  became  an  office,  in  the  performance  of  which 
the  heir  as  such  had  no  personal  interest;  secondly,  when  heirship 
had  ceased  to  confer  any  pecuniary  benefit  upon  the  heir,  the 
absurdity  of  holding  the  latter  personally  liable  for  the  debts  of 
the  deceased  became  manifest;  and  hence  the  doctrine  that  an 
heir  was  so  liable  became  entirely  obsolete,  while  the  exhibiting 
of  an  inventory  ceased  to  be  a  privilege,  and  became  a  duty. 

Two  further  remarks  are  called  for  respecting  the  transfer  of  the 
jurisdiction  over  the  estates  of  deceased  persons  from  the  secular 
to  the  ecclesiastical  authorities,  namely,  first,  that  in  England  it 
extended  only  to  personal  or  movable  property,  feudalism  having 
secured  complete  dominion  over  land;  secondly,  that  it  did  not 
extend  to  the  payment  of  debts,  as  to  which  executors  and  admin- 
istrators have  always  been  amenable  to  the  secular  authorities. 

We  are  now  prepared  to  inquire  what  remedy  was  furnished  by 
the  law  of  England  to  a  creditor  of  a  deceased  debtor  against  the 
personal  property  of  the  latter,  at  the  time  when  equity  first  as- 
sumed jurisdiction  over  creditors'  bills.  First,  the  remedy  was  an 
action  by  the  creditor  against  the  executor  ^  of  the  deceased,  as  by 
the  Roman  law  it  was  an  action  against  the  heir.  Secondly,  the 
executor  was  bound  to  pay  the  debts  of  the  deceased  out  of  his 
personal  property,  i.e.,  so  far  as  such  property  would  enable  him 
to  do  so,  but  no  further.  He  was  not,  therefore,  regarded  as  per- 
sonally owing  the  debt,  and,  though  an  action  of  debt  lay  against 

1  See  //'/(/.  ^12-13,  26S-69.  See  also  a  learned  and  instructive  article  by  Mr.  Henry 
C.  Coote,  I  Law  Mag.  and  Law  Rev.  252-67. 

2  As  there  will  be  no  occasion  hereafter  to  distinguish  between  executors  and  admin- 
istrators, the  term  "  executor  "  will  alone  be  used. 

9 


I30        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

him,  he  was  liable  only  in  the  dctinct,  —  not  in  the  debet  ct  dctinct. 
Thirdly,  the  executor  still  retained  so  much  of  the  character  of  his 
prototype,  the  Roman  heir,  that  the  law  always  assumed  that  the 
assets  in  his  hands  were  sufficient  for  the  payment  of  debts,  until 
the  contrary  appeared ;  and  hence  the  creditor  never  had  the 
burden  of  alleging  and  proving  that  the  executor  had  sufficient 
assets  to  pay  his  debt.^  Fourthly,  if  the  executor  had  not  sufficient 
assets  to  pay  the  plaintiff's  debt,  he  had  to  set  up  that  fact  as  an 
affirmative  defence  and  prove  it.  If  he  failed  to  set  it  up,  or  failed 
to  prove  it,  and  the  plaintiff  recovered  in  consequence,  the  verdict 
and  judgment,  or  (if  the  judgment  was  by  default  or  on  demurrer) 
the  judgment  alone,  established  conclusively  that  the  executor  had 
sufficient  assets,  it  being  a  universal  principle  that  a  defendant  who 
fails  to  set  up  or  to  prove  an  affirmative  defence  at  the  proper 
time,  loses  the  benefit  of  it,  the  law  acting  on  the  supposition  that 
he  has  no  such  defence,  and  not  permitting  him  to  say  to  the  con- 
trary .^  Therefore,  fifthly,  the  question  whether  the  executor  had 
assets  to  pay  the  plaintiff's  debt  was  always  settled  conclusively  at 
the  trial.  If  it  appeared  that  he  had  not,  there  was  a  verdict  and 
judgment  in  his  favor,  and  the  plaintiff  paid  costs.  If  it  did  not 
so  appear,  there  was  (in  the  absence  of  any  other  objection  to 
the  plaintiff's  recovering)  a  verdict  and  judgment  for  the  plaintiff, 
in  which  event  the  executor  had  to  pay  the  judgment,  even  though 
he  paid  it  out  of  his  own  pocket.  Still,  sixthly,  the  judgment,  in 
accordance  with  the  legal  theory  of  the  executor's  liability,  was 
only  that  the  plaintiff  recover  the  amount  out  of  the  assets  of  the 
testator  in  the  executor's  hands,  or,  in  technical  language,  the 
judgment  was  de  bonis  iestaioris,  —  not  de  bonis  propriis.  In  short, 
while  the  judgment  established  the  liability  of  the  executor  con- 
clusively, it  did  so,  not  by  making  the  debt  of  the  testator  his  debt, 
but  by  proving  conclusively  that  he  had  assets  of  the  testator  suf- 
ficient to  pay  it.  Seventhly,  when  an  execution  was  issued  on  a 
judgment  against  an  executor,  a  failure  by  the  latter  to  show  to  the 
sheriff  goods  of  the  testator  out  of  which  the  amount  of  the  judg- 
ment could  be  made,  proved  that  the  executor  had  wasted  or  con- 
verted to  his  own  use  a  sufficient  amount  of  the  testator's  assets  to 
pay  the  judgment;    i.e.,  that  the  executor  had   committed   that 

1  William  Banes's  Case,  9  Rep.  93  b. 

2  Rock  V.  Leighton,  i  Salk.  310,  Comyns,  87,  i  Ld.  Raym.  589,  3  T.  R.  690;  Rams- 
den  V.  Jackson,  i  Atk.  292  ;  Erving  v.  Peters,  3  T.  R.  685 ;  Leonard  v.  Simpson, 
2  Bing.  N.  C.  176;  Palmer  v.  Waller,  i  M.  &  W.  689. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         131 

species  of  tort  known  as  a  devastavit .  Eighthly,  when  an  executor 
had  committed  a  devastavit  he  was  required  to  pay  the  testator's 
debts,  to  the  extent  of  such  devastavit,  out  of  his  own  pocket. 
This  habihty  could  be  enforced  by  a  creditor  who  had  already  re- 
covered a  judgment  de  bonis  testatoris,  in  either  of  two  ways  ;  namely, 
by  bringing  a  new  action  against  the  executor  personally  for  the 
tort,  in  which  action,  of  course,  the  judgment  was  de  bonis 
propriis^  or  by  issuing  a  scire  facias  on  the  judgment  already  re- 
covered, calling  upon  the  executor  to  show  cause  why  the  plaintiff 
should  not  have  execution  against  the  executor's  own  goods. ^ 

The  next  question  is,  whether  any  sufficient  reason  can  be 
found,  in  the  matters  stated  in  the  preceding  paragraph,  for  per- 
mitting a  creditor  of  a  deceased  debtor  to  file  a  bill  in  equity 
against  the  executor  of  the  latter,  instead  of  suing  him  in  an  action 
at  law.  Before  considering  that  question,  however,  it  may  be  well 
to  point  out  briefly  the  nature  of  the  relief  which  equity  gives 
upon  a  creditor's  bill,  in  order  that  the  reader  may  compare  such 
relief  with  the  remedy  given  by  the  common  law,  as  stated  in  the 
preceding  paragraph.  Equity  takes  its  stand  in  effect  upon  the 
Constitution  of  Justinian,  by  giving  the  executor  his  choice 
between  accounting  for  the  testator's  personal  estate,  on  the  one 
hand,  and  paying  the  testator's  debts  out  of  his  own  pocket,  on 
the  other  hand.  Justinian's  Constitution  said  to  the  Roman 
heir  that  he  might  avoid  personal  liability  for  the  debts  of  the 
deceased  by  accounting  for  the  estate  of  the  latter,  i.e.,  by  pre- 
paring and  filing  an  inventory,  which,  of  course,  must  be  followed 
up,  if  necessary,  by  a  full  accounting.  Equity  says  to  the  modern 
executor  against  whom  a  creditor's  bill  is  filed,  that  he  may,  so 
far  as  the  plaintiff  is  concerned,  avoid  the  burden  of  accounting 
for  the  testator's  estate  by  admitting  in  court  sufficient  assets  to 
pay  the  plaintiff's  debt,  and  thus  making  himself  personally  liable 
for  such  debt.  And  equity  requires  the  executor  to  make  his 
choice  at  the  earlie.st  practicable  moment,  namely,  in  his  answer 
to  the  bill.  If  the  executor  admits  assets  in  his  answer,  all  that 
the  plaintiff  has  to  do  at  the  hearing  is  to  prove  his  debt,  where- 
upon a  decree  will  be  made  that  the  executor  pay  the  debt  thus 
proved,  and  this  decree  will  be  enforced  by  the  usual  process  of 
contenipt.  If  the  executor  decline  to  admit  assets  in  his  answer, 
the  only  difference  at  the  hearing  will  be  that  instead  of  a  decree 

^  tjee  Wheatley  v.  Lane,  i  Wms.  Saund.  216a,  with  Serjeant  Williams's  notes. 


132        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

for  immediate  payment,  a  decree  will  be  made  that  the  executor 
render  an  account  of  the  testator's  estate  before  a  Master.  When 
this  has  been  done,  and  the  Master  has  made  his  report  to  the 
court,  and  the  report  stands  confirmed,  the  cause  is  brought  on  for 
a  further  hearing,  and  a  decree  is  made  that  the  executor  pay  to 
the  plaintiff  the  amount  which  has  been  found  due  to  him,  if  the 
assets  found  to  be  in  the  executor's  hands  are  sufficient  for  that 
purpose,  —  if  not,  then  to  the  extent  of  such  assets. 

It  would  be  difficult  to  devise  a  course  of  proceeding  more 
perfectly  adapted  to  the  exigencies  of  the  case,  more  simple, 
more  direct,  or  more  conformable  to  justice,  than  the  foregoing ; 
and  there  can  be  no  doubt  that,  in  all  these  particulars,  it 
possesses  a  great  advantage  over  the  corresponding  course  of 
proceeding  at  common  law.  Still,  the  mere  fact  that  the  remedy 
furnished  by  the  common  law  was  not  as  good  as  it  might  be, 
while  it  might  be  a  sufficient  reason  for  demanding  a  better  one, 
either  from  the  courts  themselves  or  from  the  Legislature,  was 
scarcely  sufficient  to  justify  equity  in  assuming  jurisdiction  over  a 
purely  legal  right.  We  must,  therefore,  go  further,  and  inquire 
whether  the  case  is  one  for  which  the  common  law  cannot  furnish 
an  adequate  remedy;  and,  in  doing  this,  we  may  as  well  go  at 
once  to  the  point  of  chief  difficulty,  namely,  the  defence  of  want 
of  assets.  How  shall  a  court  of  common  law  deal  with  this 
defence?  How  shall  it  find  out  whether  an  executor  has  sufficient 
assets  or  not?  Clearly  there  is  but  one  way  of  doing  this 
properly,  namely,  by  requiring  an  account  from  the  executor  of 
the  estate  of  his  testator.  Can  a  court  of  law  require  such  an 
account?  A  court  of  law  can,  indeed,  take  an  account  after  a 
fashion,  for  it  formerly  did  do  it  in  the  action  of  account;  but 
then  there  was  special  machinery  provided  in  that  action  for 
taking  an  account,  and  the  account  was  not  taken  before  a  jury. 
The  action  of  account,  however,  would  not  lie  for  the  recovery  of 
a  debt,  nor  any  other  action  except  debt  or  indebitatus  assumpsit. 
Only  debt  and  indebitatus  assumpsit  would  lie,  therefore,  against 
an  executor  for  the  recovery  of  a  debt  due  from  his  testator.  But 
in  neither  of  these  actions  was  there  any  machinery  for  taking  an 
account.  In  each  of  them  there  was  but  one  trial,  namely,  by  a 
jury.  The  judgment,  moreover,  was  the  next  step  in  the  action 
after  the  trial ;  i.e.,  the  trial  ended  in  a  verdict,  and  upon  the 
verdict  judgment  was  rendered.  If  any  account  was  to  be  taken, 
therefore,  in  either  of  these  actions,  it  must  be  taken  at  the  trial; 


A    BRTEF  SURVEY  OF  EQUITY  JURISDICTION.         1 33 

and  yet  it  was  never  claimed  that  an  account  could  be  taken  by 
or  before  a  jury. 

Ikit  the  difficulty  was  not  confined  to  the  tribunal  by  or  before 
which  the  account  must  be  taken.  It  was  more  fundamental.  An 
account  is  rendered  in  discharge  of  an  obligation  to  account.  It 
is  rendered,  not  for  the  benefit  of  the  party  rendering  it,  but  for 
the  benefit  of  the  party  to  whom  it  is  rendered,  the  latter  having 
acquired  a  right  to  have  it  rendered.  It  may,  of  course,  be 
rendered  voluntaril}',  just  as  any  obligation  may  be  voluntarily 
performed ;  or  it  may  be  rendered  by  compulsion,  i.e.,  by  the 
compulsion  of  an  action  or  suit.  When  rendered  by  compulsion, 
it  is  rendered  pursuant  to  the  judgment  or  decree  of  a  court. 
This  judgment  or  decree  may  be  the  result  of  a  trial,  or  it  may  be 
pronounced  upon  the  defendant's  admissions,  according  as  the 
defendant  denies  or  admits  his  obligation  to  account;  but  in 
either  case  the  accounting  is  the  primary  object  for  which  the 
suit  is  brought  (the  ultimate  object  being  the  payment  of  what- 
ever the  plaintiff  shall  be  entitled  to  receive  as  the  result  of  the 
accounting),  and  in  either  case,  therefore,  the  accounting  is  by 
way  of  relief. 

When,  however,  an  executor  sets  up  a  want  of  assets  in  an 
action  of  debt  or  indebitatus  assumpsit  brought  against  him  by  a 
creditor  of  his  testator,  he  does  so,  as  we  have  seen,  by  way  of 
aflfirmative  defence,  and  the  setting  up  of  an  affirmative  defence  is 
a  very  different  thing  from  rendering  an  account.  An  affirmative 
defence  is  always  set  up  voluntarily,  and  for  the  defendant's  own 
benefit.  Instead  of  coming  after  a  judgment  or  decree,  it  comes 
before  the  trial,  and  the  setting  of  it  up  is  a  step  leading  up  to  the 
trial.  Instead  of  being  an  object  of  the  plaintiff's  action,  it  is  one  of 
the  means  by  which  the  defendant  resists  the  action,  —  instead  of 
being  the  relief  for  which  the  action  was  brought,  it  is  a  means 
of  preventing  the  plaintiff  from  obtaining  any  relief.  Moreover, 
an  affirmative  defence  always  consists  of  facts,  of  which  truth  or 
untruth  may  be  predicated ;  and  when  such  a  defence  is  set  up  in 
an  action  at  law,  as  the  truth  of  the  plaintiff's  declaration  stands 
admitted,  the  trial  turns  entirely  upon  the  truth  or  untruth,  the 
validity  or  invalidity,  of  the  defence.  If  the  defence  turn  out  to  be 
true  and  valid,  the  action  will  be  wholly  defeated ;  if  it  turn  out  to 
be  untrue  or  invalid,  it  will  go  for  nothing,  and  the  plaintiff,  unless 
his  declaration  be  bad  in  law,  will  recover  his  entire  demand.  An 
affirmative  defence,  therefore,  can  never  succeed  in  part  and  fail 


134        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

in  part;  unless  it  is  wholly  successful,  it  must  wholly  fail,  and 
hence,  if  such  a  defence  consist  of  several  facts,  every  one  of  those 
facts  must  be  true,  or  the  entire  defence  will  fail.  It  follows,  there- 
fore, that  an  affirmative  defence  must  be  so  framed  that  the  plaintiff 
can  traverse  it,  and  must  consist  of  such  matter  that,  if  the  plaintiff 
does  traverse  it,  or  any  fact  of  which  it  consists,  an  issue  may  be 
joined,  upon  the  decision  of  which  the  entire  action  will  depend. 

The  question  now  under  consideration,  namely,  whether  an  ex- 
ecutor has  in  his  hands  sufficient  assets  to  pay  a  creditor  of  his 
testator,  will  serve  to  illustrate  some  of  the  differences  between  an 
accounting  and  a  defence.  The  object  of  an  accounting  by  an 
executor,  at  the  suit  of  a  creditor  of  his  testator,  is  to  ascertain 
how  much  assets  the  executor  has  in  his  hands;  and  it  is  always 
the  creditor  who  wishes  to  accomplish  this  object,  and  in  order  to 
accomplish  it  he  must  bring  the  proper  action,  or  must  properly 
frame  his  action.  Moreover,  as  an  action  of  account  would  not  lie  in 
such  a  case,  there  never  was  an  action  at  law  by  which  this  object 
could  be  accomplished.  On  the  other  hand,  the  object  of  a  de- 
fence of  want  of  assets,  to  an  action  against  an  executor  by  a 
creditor  of  his  testator,  is  to  defeat  the  action,  and,  of  course,  it  is 
always  the  executor  who  wishes  to  accomplish  that  object.  But 
the  only  way  of  making  want  of  assets  a  defence  to  such  an  action, 
and  thus  defeating  the  action,  is  by  showing  that  the  executor  has 
no  assets,  or  that  he  has  none  which  are  applicable  to  the  payment 
of  the  plaintiff's  debt,  or  that  he  has  only  a  stated  amount  of 
assets,  being  an  amount  insufficient  to  pay  the  plaintiff's  debt.  If, 
then,  the  executor  plead  that  he  has  no  assets,  and  the  creditor 
traverse  the  plea,  and  issue  be  joined  upon  the  traverse,  the 
question  at  the  trial  will  be,  not  how  much  assets  the  executor 
has,  nor  whether  he  has  enough  to  pay  the  plaintiff's  debt,  but 
whether  he  has  any.  If  this  question  be  decided  in  the  negative, 
the  plaintiff  will  fail  in  his  action.^  If  it  be  decided  in  the  affirm- 
ative, the  plaintiff  will  have  a  verdict  and  judgment  for  his 
whole  demand.2  And  it  may  be  remarked  that  this  result 
has  at  least  one  merit;  namely,  that  it  makes  it  very  perilous 
for  an  executor,  who  must  be  supposed  to  know  the  facts, 
to  plead  falsely.  Unless,  therefore,  it  is  very  clear  that  he  can 
show  a  total  want  of  assets,  it  will  stand  him  in  hand  to  consider 
whether  he  will  not  adopt  the  third  mode  of  pleading,  in  which  case 

1  I  Rol.  Abr.  929  (B),  pi.  2.  ^  j  RqI.  Abr.  929  (B),  pi.  i. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         135 

the  plaintiff  may  admit  the  plea  to  be  true,  and  take  judgment  for 
his  debt,  to  be  levied  immediately  to  the  extent  of  the  assets  ad- 
mitted, the  remainder  to  be  levied  of  assets  which  shall  afterwards 
come  to  the  executor's  hands  {quando  acciderifit^),  or  the  plaintiff 
may  traverse  the  [)lea ;  and  in  that  case  the  whole  action  will  turn 
upon  the  question  whether  the  executor  has  any  more  assets  than 
he  has  admitted.  Formerly,  however,  it  often  happened,  in  Eng- 
land, that  an  executor,  who  was  sued  by  a  creditor  of  his  testator, 
had  assets  in  his  hands,  but  they  were  all  applicable  to  the  payment 
of  debts  of  a  higher  degree  than  the  plaintiff's,  and  which  were, 
therefore,  entitled  to  be  paid  before  the  plaintiff's;  and  in  that 
case  the  executor  adopted  the  second  mode  of  pleading;  and  he 
was  then  required  to  specify  in  detail  all  the  debts  of  a  higher 
nature  than  the  plaintiff's,  for  the  payment  of  which  he  claimed 
that  the  assets  in  his  hands  were  bound.  When  the  executor's 
plea  took  this  shape,  the  creditor  could  either  traverse  the  allegation 
that  the  executor  had  no  assets  beyond  the  amount  of  preferred 
debts  set  out  in  the  plea,  or  he  could  traverse  the  existence  of  the 
preferred  debts,  or  of  a  sufficient  portion  of  them  to  bring  the  re- 
mainder within  the  limits  of  the  assets  admitted  by  the  executor. 
In  short,  the  creditor  could  either  deny  that  the  assets  amounted 
to  so  little,  or  that  the  preferred  debts  amounted  to  so  much,  as 
the  executor  claimed.^ 

Such,  it  is  conceived,  is  the  true  theory  of  the  common-law 
defence  of  want  of  assets,  pleaded  by  an  executor  to  an  action 
brought  against  him  by  a  creditor  of  the  testator;  and  there  is 
believed  to  be  no  room  for  doubt  that,  in  early  times,  theory  and 
practice  were  in  this  respect  in  entire  harmony  with  each  other.^ 
There  was,  however,  long  since  a  departure  from  principle  in  one 
particular  which  introduced  a  great  change  in  practice.  Thus, 
as  early  as  the  time  of  James  I.,  in  a  case  reported  by  Lord 
Coke,*  where  the  debt  sought  to  be  recovered  was  i^200,  and  issue 
was  joined  on  the  traverse  of  a  plea  of  ple)ie  administravit^  and 

^  See  Noell  v.  Nelson,  2  Wms.  Saund.  214. 

2  See  Hancocke  v.  Prowd,  i  Wms.  Saund.  328,  with  Serjeant  Williams's  notes. 

8  See  infra,  pp.  146-47. 

*  Mary  Shipley's  Case,  8  Rep.  134  «• 

*  An  executor's  plea  of  want  of  assets  is  commonly  called  a  plea  oi pleue  administravit, 
because  it  begins  with  an  allegation  that  the  defendant  hath  fully  administered  all  the 
goods  and  chattels  which  were  of  his  testator  at  the  time  of  his  death,  but  then  the  plea 
immediately  adds,  that  the  defendant  hath  no  goods  or  chattels  which  were  of  said 
testator  at  the  time  of  his  death  in  his  hands  to  be  administered,  nor  had  at  the  com- 


136        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  jury  found  that  the  executor  had  assets  to  the  amount  of  ;{^I75 
only,  the  court,  while  holding  that  the  plaintiff  was  entitled  to  judg- 
ment  for   ^200,    besides    damages    and   costs,  intimated   that  the 
plaintiff  would  be  entitled  to  levy  only  £i7S'y   and,  in  the  time  of 
Charles   I.,    in   a  case    similarly    circumstanced,    the    court    said: 
"  When  it  is  found  that  the  defendant  hath  some  assets,  although 
of  little  value,  so   as  he  hath   not  fully   administered,  the  plain- 
tiff  shall   have   judgment   for   the    entire   debt,   but  he   shall   not 
have    execution    but    of    as    much    as    is    found,    and    shall    not 
be    barred    for    the    residue;     and    if    more    assets    come    after- 
wards, he  may  have  a  scire  facias  to  have  execution    thereof."  ^ 
This  is  certainly  an  extraordinary  doctrine,  as   it  involves  a  plain 
contradiction.     The  court,  having  given  judgment  that  the  plain- 
tiff recover  his  entire  debt,  to  be  levied  of  the  goods  and  chattels 
of  the  testator  in  the  executor's  hands  (?.^.,  the  whole  of  it  to  be 
so  levied,  and  levied  immediately),  said,  nevertheless,  that  the  plain- 
tiff could,  by  virtue  of  that  judgment,  have  execution  for  a  part  of 
his  debt  only,  and  that,  in  order  to  obtain  an  execution  for  the 
remainder,   he    must    bring   a  scire  facias  {i.e.,   a   new   action   in 
effect),  prove  new  facts,  and  obtain  a  second  judgment, —  which, 
however,  could  be  (and  was)  only  a  repetition  of  the  first.     And 
yet  this  doctrine  continued  to  be  recognized  and  acted  upon  until 
the  time  of  Lord  Mansfield.^     That  it  was,  however,  a  departure 
from   a  more  ancient  practice,  seems  to  be  clear;   for  if  the  law 
had  always  been,  in  regard  to  the  execution,  as  the  court  declared 
it  to  be   in   Dorchester  v.  Webb,  the  judgment  would  have  been 
that  the  plaintiff  recover  his  debt,  to  be  levied  immediately  to  the 
amount  of  the  assets  found  in  the  executor's  hands,  and  as  to  the 


mencement  of  the  action,  or  at  any  time  since ;  and  this  negative  allegation  is  the  material 
part  of  the  plea,  and  the  part  on  which  a  traverse  must  be  taken.  Reeves  v.  Ward, 
2  Bing.  N.  C.  235.  The  plea  was  also  formerly  known  as  a  plea  of  rie7ts  entre mains,  and 
that  seems  to  be  a  better  name  for  it  than/Zt'w^  admiiustravit.     See  infra,  p.  146,  n.  (i). 

1  Dorchester  v.  Webb,  Cro.  Car.  372-373- 

2  Thus,  in  the  great  case  of  the  Bank  of  England  v.  Morice,  2  Str.  102S,  Cas.  t. 
Hardw.  219,  which  was  decided  during  Lord  Hardwicke's  chief  justiceship,  and  in  which 
the  form  of  the  judgment  was  specially  considered  and  settled  by  the  court,  the  jury 
found  that  the  plaintiff's  debt  amounted  to  ^^28,993  8s.  id.,  and  that  the  defendant  had 
assets,  applicable  to  the  payment  of  the  plaintiffs  debt,  amounting  to  ;,^  14,659  I2s.9d. ; 
and  the  judgment  was  in  effect  that,  inasmuch  as  the  assets  amounted  only  to  the  sum 
last  named,  therefore  the  plaintiff  recover  his  entire  debt,  with  costs  amounting  to  ^^200 
7s.  7d.,  thus  making  in  all  ;^29,I93  15s.  8d.,  to  be  levied  de  bonis  testatoris  !  See  Cas.  <. 
Hardw.  230-31,  where  the  judgment  is  given  verbatim.  It  is  not  too  much  to  say  that 
this  judgment  is  upon  its  face  quite  unintelligible. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 3/ 

remainder  to  be  levied  of  assets  which  should  afterwards  come  to 
the  executor's  hands ;  and,  if  a  change  was  to  be  made,  the  judg- 
ment should  have  been  first  changed,  and  then  the  corresponding 
change  in  the  execution  would  have  followed  as  a  matter  of  course. 
As  it  was,  however,  the  execution  was  changed  while  the  judg- 
ment was  permitted  to  retain  its  original  form  ;  and  it  remained 
for  Lord  Mansfield  to  make  the  execution  conform  to  the  judg- 
ment by  changing  the  form  of  the  latter  in  the  manner  just  sug- 
gested.^ Since  this  latter  change  was  made,  therefore,  whatever 
may  be  said  of  the  judgment  and  execution,  taken  together,  they 
have  at  least  had  the  merit  of  consistency. 

This  change  in  the  execution  caused  an  important  change  in 
the  trial,  and  in  the  function  of  the  jury;  for,  as  soon  as  it  was 
decided  that  the  plaintiff  could  have  immediate  execution  for  the 
amount  only  of  the  assets  in  the  executor's  hands,  it  became 
necessary  for  the  jury  to  inquire,  and  find  by  their  verdict,  how 
much  assets  was  in  the  executor's  hands ;  and  the  only  way  of 
doing  this  was  for  the  jury  to  ascertain,  first,  how  much  assets  the 
executor  had  received,  or  would  have  received  if  he  had  done  his 
duty;  then,  how  much  he  had  justly  and  legally  paid  out,  and  how 
much,  if  any,  he  had  lost  without  his  fault;  and  the  difference 
between  these  two  aggregates  would  be  the  amount  in  the  ex- 
ecutor's hands,  either  actually  or  in  legal  contemplation.  This, 
however,  is  neither  more  nor  less  than  taking  an  account,  —  it  is 
the  precise  process  which  has  to  be  gone  through  with  in  every 
account  that  is  taken. 

The  courts,  therefore,  in  thus  changing  the  nature  of  the  trial, 
lost  sight  of  the  nature  of  the  action,  of  the  defendant's  plea,  and 
of  the  issue  joined,  and  required  the  jury  to  do  something  very 
different  from  trying  the  issue  which  they  had  been  impanelled  to 
try,  and  something  which  they  were  not  competent  to  do  properly. 

The  matter  must,  however,  be  looked  at  from  still  another  point 
of  view.  Independently  of  any  of  the  changes  before  referred  to, 
the  issue  joined  upon  a  traverse  of  a  plea  of  plcne  administravit 

1  Harrison  v.  Beecles,  cited  3  T.  R.  688.  This  was  an  action  of  assumpsit,  to  which 
the  defendant  pleaded  plene  administravit.  At  the  trial,  before  Lord  Mansfield,  the 
plaintiff  proved  a  debt  of  £^0,  and  the  defendant  was  found  to  have  assets  amounting  to 
^25.  The  plaintiff's  counsel  insisted  that  he  was  entitled  to  a  verdict  for  his  whole  debt. 
Lord  Mansfield  said:  "The  law  was  certainly  understood  to  be  so,  and  there  are  a 
hundred  cases  so  determined.  This  struck  me  as  absurd  and  wrong."  Accordingly,  the 
plaintiff  had  a  verdict  and  judgment  for  £2<,.  and  a  judgment  of  assets  quando  accidcriiit 
for  the  residue  of  his  debt. 


138        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

always  involved  an  anomaly  in  respect  to  the   burden  of  proof. 
That  issue  was,  as  we   have   seen,  whether  the   executor  had  any 
assets  in  his  hands  applicable  to  the  payment  of  the  plaintiff's  debt, 
or    any   more   than    he    had   admitted    having.     Upon    this    issue 
the  plaintiff  held  the  affirmative;   for  if  the   executor  had  assets 
which  he  denied  having,  that  was  an  affirmative  fact;   and  yet  the 
executor  had  the  burden  of  proof,  for  the  issue  was  joined  upon  a 
traverse   of   his   affirmative  plea  (^i.e.,  affirmative   in  law,   though 
negative  in  fact),  and,  therefore,  he  must  prove  his  plea  in  order 
to  succeed  in  the  action.     But  how  could  the  executor  prove  that 
he  had  no  assets,  or  only  a  stated  amount  of  assets?     Of  course  he 
could   show  what  assets  he  had  disposed   of,  and   how  ;    but  that 
would    signify    nothing    until    it    appeared    what    assets    he    had 
received.     How  could  this  latter  fact  be  made  to  appear?     Only 
in  one  way,  namely,  by  proof  on  the   part  of  the  plaintiff;    and 
hence  the  anomaly  just  alluded   to,  and  which   consisted  in   this, 
namely,  that,   while  the  executor   had   the  burden  of  proof,   the 
plaintiff  (the   creditor)  had   to  begin  at  the  trial  by  proving  the 
receipt  of  assets  by  the  executor,  and  then  the  executor  proceeded 
to  show  what  had  become  of  the   assets  with  which  the  plaintiff's 
evidence  had   charged   him ;     and  this   anomaly   existed   equally, 
whether  the  jury  were  confined  to  a  trial  of  the  issue,  according  to 
what  the  writer  conceives  to  have  been  the  original  and  proper 
practice,  or  whether  they  were  required  to  take  an  account,  accord- 
ing to  the  modern   practice.^     But  how  could   a  creditor   of  the 
testator  prove  what  amount  of  assets  the  executor  had  received? 
Clearly,  he   could    not    do    it  (except   by   accident)    without   the 
executor's  assistance;    and  yet  a  common-law  court  had  no  means 
of  compelling  an  executor  to  give  such  assistance  to  a  creditor. 
The  creditor  could,  of  course,  file  a  bill  for  discovery,  but  that 
would  scarcely  answer  his  purpose,  as  he  could  only  by  that  means 
compel  the  executor  to  answer  categorically  specific  charges  or 
interrogatories.      The    ecclesiastical    court,    indeed,    required    the 
executor  to  make  and  file  in  its  registry  a  sworn  inventory  of  the 
testator's  personal  estate ;   and  this,  if  properly  done,  would  serve 


1  In  Dean  and  Chapter  of  Exeter  v.  Trewinnard,  Dyer,  80  a,  in  the  time  of  Edward 
VI  ,  to  a  scire  facias  against  an  administrator  on  a  judgment  recovered  against  the 
intestate,  the  defendant  pleaded  plctie  adtninistravit,  on  which  there  was  an  issue ;  and 
the  reporter  says:  "  In  giving  the  evidence  to  the  jury  the  defendant  commenced  first. 
Note  this,  for  I  believe  it  is  unusual,  because  he  is  in  the  negative,  for  the  conclusion  of 
plette  adtninistravit  is,  and  so  nothing  within  his  hands  (rietis  entre  mains)." 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         139 

the  creditor's  purpose,  at  least  down  to  the  time  when  the  inventory 
was  sworn  to;  for  the  inventory  would  of  course  be  evidence 
against  the  executor  as  an  admission  by  him.  There  were  two 
reasons,  however,  why  a  creditor  should  not  have  been  satisfied 
with  such  assistance  from  the  executor  as  he  would  obtain  throuc,'h 
the  ecclesiastical  court:  first,  it  was  a  hardship  on  the  creditor  to 
have  to  sue  the  executor  both  in  an  ecclesiastical  court  and  in  a 
common-law  court,  in  order  to  recover  a  debt  about  which  there 
was  no  controversy ;  1  secondly,  the  Court  of  King's  Bench  held 
(strangely  enough)  that  the  ecclesiastical  courts  had  jurisdiction 
only  to  compel  an  executor  to  file  an  inventory,  —  not  to  compel 
him  to  file  a  sufficient  and  proper  inventory;  and  hence,  if  one  of 
those  courts  attempted  to  do  the  latter,  the  King's  Bench  would 
grant  a  prohibition,  on  the  application  of  the  executor.'-^  The 
creditor,  therefore,  could  only  obtain  such  an  inventory  as  the 
executor  chose  to  swear  to  and  exhibit. 

Such  were  the  obstacles  which  a  creditor  was  liable  to  encounter 
who  sued  the  executor  of  his  deceased  debtor  at  law.  Did  they 
constitute  a  sufficient  reason  for  permitting  him  to  sue  in  equity? 
This  question  must  be  answered  in  the  affirmative.  First,  justice 
to  the  creditor  and  to  the  executor  alike  required  that  an  account 
should  be  taken  of  the  assets  received  by  the  executor,  unless 
the  latter  was  willing  to  admit  that  he  had  sufBcient  assets  to  pay 
the  plaintiff's  debt.  Even,  therefore,  if  courts  of  law  had  never 
attempted  to  take  an  account  in  such  cases,  equity  would  have 
been  abundantly  justified  in  assuming  jurisdiction.  Secondly, 
although  the  courts  of  common  law  attempted,  in  the  manner 
already  explained,  to  convert  the  trial  of  a  common-law  issue  into 
the  taking  of  an  account,  yet  they  did  not  thereby  render  the  in- 
terference of  equity  unnecessary,  —  they  only  changed  the  ground 
for  such  interference.  As  equity  always  held  that  courts  of  com- 
mon law  were  not  competent  to  enforce  an  accounting  properly, 
even  in  an  action  expressly  framed  for  that  purpose,  and  in  which 
a  special  tribunal  was  provided  for  taking  the  account  after  a  jury 
had  decided  that  an  account  ought  to  be  taken,  it  would  be  a  waste 

1  In  Mara  v.  Quin,  6  T.  R.  i,  6,  it  appeared  that,  after  issue  was  joined,  the  plain- 
tiff had  to  cite  the  defendant  in  the  ecclesiastical  court  to  exhibit  an  inventory,  and 
that  it  took  him  nearly  two  years  to  accomplish  that  object,  during  which  time,  of  course, 
the  trial  was  delayed. 

2  Hinton  57.  Parker,  8  Mod.  i68;  Catchside  v.  Ovington,  3  Burr.  1922;  Henderson 
V.  French,  5  M.  &  S.  406 ;  Griffiths  v.  Anthony,  5  Ad.  &  El.  623.  That  the  ecclesiastical 
courts  did  not  accept  this  view,  see  Telford  v.  Morison,  2  Addams,  319. 


140        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

of  time  and  space  to  argue  that  they  were  not  competent  to  do  it 
in  a  case  where  the  form  of  action,  the  nature  of  the  pleadings, 
the  question  to  be  tried,  and  the  mode  of  trial,  —  all  forbade  their 
even  attempting  to  do  it.  Thirdly,  justice  to  the  creditor  impera- 
tively required  that  an  executor,  who  refused  to  admit  sufficient 
assets  to  pay  him,  should  render  an  account  of  the  assets  received 
by  him  under  oath,  i.e.,  that  he  should  make  up  and  bring  in  an 
account,  containing  a  full  and  minute  enumeration  and  description 
of  the  items  of  charge  and  items  of  discharge,  the  former  consist- 
ing of  the  assets  received  by  him,  the  latter  of  the  payments,  etc., 
made  by  him,^  and  that  he  should  make  oath  to  the  truth  and  com- 
pleteness of  such  account,  —  in  particular  that  it  omitted  nothing 
of  the  personal  estate  of  the  testator  which  had  come  to  the  exec- 
utor's knowledge;  2  and,  this  having  been  done,  justice  further 
required  that  the  executor  should  answer  categorically  and  under 
oath  all  such  proper  charges  and  interrogatories  as  the  creditor 
should  make  and  propound.  All  these  advantages  the  creditor 
who  sued  in  equity  obtained  as  a  matter  of  course,  while  the 
creditor  who  sued  at  common  law  could  obtain  such  of  them  only 
as  might  be  afforded  by  the  inventory  which  the  executor  could  be 
required  to  exhibit  in  the  ecclesiastical  court,  and  even  that  inade- 
quate substitute  for  the  assistance  which  equity  would  afford  to 
him,  the  creditor  could  obtain  only  at  the  expense  of  two  suits. 

Such,  it  is  conceived,  are  the  reasons  (still  existing)  which  jus- 
tified equity  in  assuming  jurisdiction  over  creditors'  bills  against 
executors.  Another  reason,  however,  formerly  existed,  which 
seems  to  have  had  considerable  (though  it  is  difficult  to  say  how 
much)  influence  in  establishing  the  jurisdiction;  and,  though  it 
was  a  reason  which  has  now  ceased  to  have  much  force,  even  in 
England,  yet  it  would  be  wrong  to  omit  all  mention  of  it. 

Debts  are  of  three  principal  degrees  or  grades;  namely,  simple 
contract  debts,  which  are  the  lowest ;  debts  created  by  specialty, 
which  are  the  next  higher;  and  debts  created  by  matter  of  record, 
including  judgments,  which  are  the  highest  of  all.  Formerly, 
moreover,  when  a  debtor  died,  his  debts  were  required  to  be  paid 
in  the  order  of  their  grade ;  namely,  debts  by  matter  of  record 
first,  specialty  debts  next,  and  simple  contract  debts  last  of  all. 
Specialty  debts  and  debts  by  matter  of  record  had  also  other  im- 
portant advantages,  which  will  be  mentioned  hereafter.     For  these 

1  See  supra,  p.  I2i,  n.  (i).  2  gee  supra,  p.  103. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.         141 

reasons,  it  was,  of  course,  a  matter  of  importance  to  a  creditor 
that  his  debt  should  be  of  as  his^h  a  nature  as  practicable,  and 
therefore  specialty  debts  and  debts  by  matter  of  record  were  in- 
comparably more  common  than  they  are  now.  The  form  of  spe- 
cialty by  which  debts  were  created  was  almost  invariably  a  bond 
with  a  condition,  i.e.,  a  bond  by  which  the  debtor  acknowledfred 
himself  boimd  to  the  creditor  for  a  sum  larger  than  (generally  twice 
as  large  as)  the  real  debt,  with  a  condition  making  the  bond  void 
on  payment  of  the  amount  actually  due  by  a  day  named.  The 
larger  sum  was,  therefore,  in  the  nature  of  a  penalty  incurred  by 
the  debtor  in  the  event  of  his  failing  to  pay  the  smaller  sum  ac- 
cording to  the  terms  of  the  condition  ;  and  yet,  upon  breach  of 
the  condition,  the  larger  sum  became  the  actual  legal  debt. 

The  matters  of  record  by  which  debts  were  created  were  judg- 
ments, recognizances,  and  statutes.  Judgments  were  rendered 
either  in  invituvi  or  upon  confession.  The  object  of  confessing  a 
judgment  was  to  give  a  creditor  the  security  afforded  by  a  judg- 
ment for  the  payment  of  his  debt;  and  hence  a  judgment  con- 
fessed was,  like  a  bond,  generally  for  a  larger  sum  than  was  actually 
due,  and  so  was  in  the  nature  of  a  penalty.  A  recognizance  was 
(and  is)  an  acknowledgment  of  a  debt  in  a  court  of  record,  the 
acknowledgment  thus  becoming  a  record;  and  it  is  usually  given 
in  an  action  or  in  some  other  legal  proceeding  {e.g.,  bail  always 
become  bound  in  a  recognizance)  ;  and  its  object  generally  is  to 
secure  the  payment  of  a  smaller  sum,  or  the  doing  of  some  other 
act.  Statutes  (now  obsolete)  were  formerly  very  common  in 
England,  and  were  either  statutes  merchant,  statutes  staple,  or 
recognizances  in  the  nature  of  statutes  staple.^  They  differed  in 
substance  from  bonds  only  in  this,  that  they  derived  their  efficacy, 
not  from  being  sealed  and  delivered  by  the  debtor,  but  from  being 
acknowledged  by  him  before  a  judge  or  other  officer  designated 
by  statute,  and  thereupon  becoming,  by  force  of  the  statute,  mat- 
ters of  record. 

It  will  be  seen,  therefore,  that  all  debts  by  matter  of  record, 
except  judgments  rendered  iti  invitum,  as  well  as  all  specialty 
debts,  after  the  conditions  on  which  they  originally  depended  were 
broken,  were  generally  in  the  nature  of  penalties.  It  will  be  seen 
also  (indeed  it  has  already  been  seen)  that  an  executor  who  was 

^  Statutes  merchant  had  their  origin  in  the  statute  De  Mercatoribiis,  13  Edward  I., 
statute  3  ;  statutes  staple,  in  the  statute  of  27  Edward  III.  c.  9;  and  recognizances  in 
the  nature  of  statutes  staple,  in  the  statute  of  23  Henry  VIII.  c.  6. 


142         A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

sued  at  law  by  a  creditor  of  his  testatcr,  and  who  had  an  amount 
of  assets  in  his  hands  equal  to  the  plaintiff's  debt,  might  yet  defend 
himself  by  showing  that  such  assets  would  all  be  required  for  the 
payment  of  debts  of  his  testator  of  a  higher  nature  than  the 
plaintiff's  debt;  and  for  this  purpose  debts  which  were  in  the  na- 
ture of  penalties  only  were  as  good  as  any  other  debts,  for  they 
were  still  legal  debts.  And  yet,  as  equity  would  always  relieve 
against  penalties,  all  that  equity  would  permit  the  owners  of  such 
debts  to  recover  was  the  amount  actually  due;  namely,  principal, 
interest,  and  costs.  An  executor  might,  therefore,  defeat  a  cred- 
itor at  law  by  means  of  legal  debts  of  a  higher  nature  which  had 
no  existence  in  equity,  i.e.,  when  there  were  assets  enough  to  pay 
all  debts  of  a  higher  nature  which  were  due  in  equity,  and  also  to 
pay  the  plaintiff  in  full.  Creditors,  therefore,  who  were  met  with 
such  a  defence  were  frequently  driven  into  equity,  not  only  as  the 
sole  means  of  ascertaining  the  truth  in  regard  to  debts  of  a  higher 
nature  due  from  their  debtor,  but  as  the  sole  means  of  obtaining 
payment  from  a  solvent  estate;  namely,  by  compelling  creditors  of 
a  higher  nature  to  extinguish  the  debts  due  to  them  by  way  of 
penalties  on  receiving  principal,  interest,  and  costs. ^ 

It  will  not  have  escaped  the  observation  of  the  attentive  reader 
that  all  of  the  reasons  which  have  been  given  for  permitting  the 
creditor  of  a  deceased  debtor  to  sue  the  executor  of  the  latter  in 
equity,  are  confined  to  cases  in  which,  if  the  creditor  sue  at  law,  he 
will  be  met  with  the  defence  of  want  of  assets.     Ought  equity,  then, 

1  According  to  the  ancient  mode  of  pleading,  when  an  executor  pleaded  debts  of  a 
higher  degree  than  the  plaintiff's,  and  alleged  that  he  had  not  more  than  sufficient  assets 
to  pay  the  former,  it  never  appeared,  upon  the  face  of  the  defendant's  plea,  whether  such 
debts  of  a  higher  degree  were  penalties  or  not.  The  case  of  Page  v.  Denton,  i  Ventr. 
354,  is  said  to  have  been  the  first  in  which  a  different  mode  of  pleading  was  adopted. 
There,  an  executor  pleaded  a  bond  given  by  the  testator  to  himself,  and  stated  that  the 
condition  of  it  was  to  pay  rent,  and  that,  at  the  time  of  the  testator's  death,  the  sum  of 
;^300  was  due  from  the  testator  to  the  defendant  for  rent ;  and  the  court  commended  the 
defendant's  mode  of  pleading  by  saying:  "  If  men  would  plead  their  case  specially,  it 
would  save  many  a  suit  in  Chancery."  This  remark  proves  that  creditors'bills,  the  object 
of  which  was  to  ascertain,  not  the  amount  of  assets,  but  the  amount  of  preferred  debts, 
were  then  well  known.  An  instance  will  also  be  found  in  Pigott  v.  Nower,  3  Swanst.  534, 
note,  of  a  creditor's  bill,  filed  as  early  as  February  i,  1671,  the  object  of  which  was  to 
ascertain  the  amount  of  actual  debt  for  which  certain  judgments  had  been  confessed  by 
the  defendant  as  administratrix  of  her  husband.  In  Parker  v.  Dee,  2  Ch.  Cas.  200,  Cas. 
t.  Finch,  123,  3  Swanst.  529,  7tote,  the  plaintiff  had  first  brought  an  action  at  law,  to 
which  the  defendant  had  pleaded  several  judgments,  which  were  upon  penal  bonds,  and 
that  he  had  no  assets  idtra,  etc.;  whereupon  the  plaintiff  filed  a  bill  (in  April,  166S), 
"  to  discover  the  truth  of  the  plea,  and  debts  therein  set  forth,  and  the  assets."  See  also 
Bank  of  England  v.  Morice,  2  Str.  1028,  Cas.  t.  Hardw.  219. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 43 

to  have  entertained  a  bill  by  a  creditor  who  gave  no  reason  for 
supposing  that  he  would  be  met  at  law  by  such  a  defence?  In 
answer  to  this  question,  it  may  be  observed  tiiat  it  would  have 
been  impracticable  for  equity  to  entertain  the  inquiry  whether  the 
defence  of  want  of  assets  would  be  set  up  at  law  or  not,  as  in  number- 
less cases  it  would  have  been  a  matter  of  pure  conjecture.  The  only 
way,  then,  of  limiting  the  jurisdiction  would  have  been  to  require 
every  creditor  to  sue  at  law  first,  and  to  permit  a  creditor  to  sue 
in  equity  only  when  he  had  been  met  at  law  v/ith  the  defence  of 
want  of  assets.  A  consequence  of  such  a  course,  however,  would 
have  been  that,  as  an  action  at  law  and  a  suit  in  equity  cannot  be 
prosecuted  concurrently  for  the  same  claim,  a  creditor,  upon  suing 
in  equity,  must  have  discontinued  his  action  at  law,^  and  that 
he  could  have  done  only  upon  payment  of  costs.  To  have  limited 
the  jurisdiction,  therefore,  in  the  manner  suggested,  would  have 
imposed  a  heavy  burden  upon  creditors  as  a  condition  of  their 
suing  in  ec^uity,  and  that,  too,  without  any  corresponding  advan- 
tage to  the  estates  of  deceased  debtors.  It  would  also  have  placed 
in  the  hands  of  executors  a  powerful  instrument  of  delay  in  pre- 
cisely those  cases  in  which  the  temptation  to  an  executor  to  hinder 
and  delay  the  creditors  of  his  testator  is  strongest.  Accordingly, 
it  became  settled  at  an  early  day  that  the  jurisdiction  of  equity 
was  subject  to  no  condition  or  limitation  whatever.^ 

It  is  further  to  be  observed  that  the  reasons  which  have  been 
given  for  the  jurisdiction  relate  entirely  to  the  immediate  relief 
sought,  namely,  either  an  admission  of  assets  or  an  accounting, — 
not  at  all  to  the  final  relief  sought,  namely,  payment  of  the  debt; 
and  yet  it  has  never  been  doubted,  since  the  time  of  Lord 
Nottingham,^  that  the  admission  of  assets  or  the  accounting 
should  be  followed  up  by  a  decree  for  the  payment  of  whatever 
the  plaintiff  is  found  entitled  to  receive  ;  and  this  decree  is  made 
upon  the  principle  of  avoiding  a  multiplicity  of  suits.     The  ulti- 

1  In  Parker  v.  Dee,  supra,  the  plaintiff  was  compelled  to  elect  whether  he  would  sue 
at  law  or  in  equity,  and  he  elected  to  sue  in  equity. 

2  In  Pigott  V.  Nower,  supra,  Lord  Nottingham  said  :  "  If  a  man  foresee  that  plene 
adniiiiistravit  may  be  pleaded  at  law,  and  then  come  lirst  into  equity,  as  he  may,  why 
should  not  that  avail  him  as  much  as  if  he  had  falsified  such  a  plea?  For  a  man  is  not 
bound  to  play  an  aftergame,  and  stay  till  he  be  hurt  by  a  plea.  It  is  no  cause  of  demurrer 
to  a  bill  for  discovery  of  assets,  that  fully  administered  is  not  yet  pleaded." 

**  In  Parker  v.  Dee,  supra,  the  plaintiff  having  obtained  an  account,  the  defendant 
pressed  for  a  dismissal  of  the  bill;  but  Lord  Nottingham  said  (I  Eq.  Cas.  Abr.  130, 
pi.  5,  2  Ch.  Cas.  201) :  "When  this  court  can  determine  the  matter,  it  shall  not  be  a 
handmaid  to  other  courts,  nor  beget  a  suit  to  be  ended  elsewhere." 


144        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

mate  relief,  therefore,  is  consequential  upon  the  primary  relief, 
a  creditor's  bill  against  an  executor  being  in  this  respect  like  a 
bill  for  an  account.-' 

Creditors'  bills  against  executors  constitute  one  of  the  oldest 
heads  of  equity  jurisdiction.  At  how  early  a  date  this  jurisdiction 
was  habitually  exercised,  it  seems  impossible  to  say.  It  was  well 
established  in  the  time  of  Lord  Nottingham ;  ^  and  before  his 
time  few  doctrines  of  equity  were  well  settled,  or  can  be  accu- 
rately traced. 

We  must  now  inquire  into  the  rights  of  a  creditor  of  a  deceased 
debtor  to  call  upon  equity  to  assist  him  in  enforcing  payment  of 
his  debt  out  of  the  land  of  his  debtor.  It  has  already  been  re- 
marked that  feudalism  secured  complete  dominion  over  the  land 
of  deceased  persons;  and  that  is  the  reason  that  the  land  of  a 
deceased  person  descends  to  his  heir,  instead  of  going  to  his 
executor.  What  effect  had  this  upon  the  rights  of  creditors? 
The  chief  object  of  feudalism  was  to  secure  the  performance  by 
tenants  to  their  lords  of  the  services  for  which  the  former  held 
their  lands  from  the  latter.  Hence  feudalism  did  not  favor  the 
claims  of  creditors;  for,  if  the  creditors  of  a  tenant  could  compel 
payment  of  their  debts  out  of  the  tenant's  land,  the  latter  might 
be  unable  to  perform  his  services  to  his  lord,  and  if  the  creditors 
of  a  deceased  tenant  could  compel  payment  of  their  debts  out  of 
the  land  which  had  descended  to  the  tenant's  heir,  the  latter 
might  be  unable  to  perform  the  services  to  his  lord,  the  obligation 
to  perform  which  had  descended  to  him  with  the  land.  Hence, 
in  English-speaking  countries,  the  rights  of  creditors  against  the 
land  of  their  debtors  depend  almost  wholly  upon  statute.  A 
judgment  creditor  could,  indeed,  at  common  law  take  in  execution 
(by  cutting  and  gathering)  any  crops  which  he  might  find  on  his 
debtor's  land,^  but  he  could  not  acquire  any  right  to  the  pos- 
session of  the  land,  —  still  less  could  he  sell  it,  or  become  himself 
the  owner  of  it.*     And  even  when  the  Legislature  interfered   in 

1  See  supra,  pp.  91,  100,  104. 

2  See  Parker  v.  Dee  and  Pigoft  v.  Nower,  supra. 

3  This  was  done  under  the  writ  of  levari  facias,  —  a  writ  which  has  long  been  ob- 
solete, except  in  a  few  special  cases.  From  it,  however,  we  have  derived  the  familiar 
term  "levy,"  —  a  term  which  is  constantly  app'ied,  though  not  with  strict  accuracy,  to 
a  writ  oi  fieri  facias.  Thus  under  a  writ  oi  fieri  facias  the  sheriff  is  said  to  "levy" 
the  amount  due  on  the  judgment,  though  the  writ  commands  him  to  "make"  that 
amount. 

*  See  Sir  William  Harbert's  Case,  3  Rep.  \\b-\za. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 45 

favor  of  judgment  creditors  (as  it  did  in  the  thirteenth  year  of 
Edward  I.),^  by  giving  them  the  right  to  have  their  debtors'  land 
extended  {i.e.,  the  annual  value  of  it  appraised,  and  the  possession 
of  it  delivered  to  them,  with  the  right  to  retain  such  possession 
at  the  appraised  value,  until  by  that  means  their  judgments  were 
satisfied),  such  right  was  limited  to  one  half  of  the  debtor's  land; 
and  it  was  not  till  nearly  six  hundred  years  later  (namely,  in 
1838)^  that  judgment  creditors  acquired  in  England  the  right  to 
have  the  whole  of  their  debtors'  land  thus  extended;  and  to  this 
day  they  cannot,  in  England,  either  sell  their  debtors'  land  upon 
execution,  or  themselves  become  the  owners  of  it. 

What  were  the  rights,  at  common  law,  of  the  creditors  of  a 
deceased  debtor  against  the  land  of  the  latter  which  had  descended 
to  his  heir?  The  answer  is,  that,  as  creditors  of  the  deceased 
debtor,  they  had  no  rights  whatever.  As,  however,  the  heir  had 
a  legal  right  to  inherit  all  the  land  of  which  his  ancestor  died 
seised  in  fee,  of  which  right  the  ancestor  could  not  deprive  him, 
so  the  ancestor  had  a  right  by  deed  to  bind  his  heir  to  the  extent 
of  the  land  which  descended  from  him  to  the  latter.  Hence, 
whenever  a  bond  was  given  by  which  the  obligor  in  terms  bound 
not  only  himself,  but  also  his  heirs,  the  consequence  was  that, 
upon  the  death  of  the  obligor,  his  heir  became  personally  liable 
on  the  bond,  just  as  if  he  had  given  it  himself,  except  that  his 
liability  was  limited  to  the  land  which  descended  to  him.  This 
liability  of  the  heir  was,  however,  limited  to  debts  by  specialty  for 
which  the  heir  was  expressly  bound.  It  was  a  privilege  in  which 
even  debts  by  matter  of  record  did  not  share.  And  even  in  re- 
spect to  specialty  debts  for  which  the  debtor's  heir  was  expressly 
bound,  the  right  of  the  creditor  to  proceed  against  the  heir  became 
very  precarious ;  for,  first,  if  the  heir  sold  the  land  which  had 
descended  to  him  before  he  was  sued  upon  a  bond  of  his  ancestor 
(an  action  actually  brought  against  the  heir  was  notice  to  a  pur- 
chaser), the  right  of  the  creditor  was  entirely  defeated.  He  could 
no  longer  proceed  against  the  heir,  for  his  execution  (as  we  shall 
see)  was  only  against  the  land  itself;  aijd  he  could  no  longer  have 
an  execution  against  the  land,  for  it  had  become  the  property  of 
the  purchaser.  Secondly,  after  lands  became  devisable,^  a  debtor 
could    entirely    defeat    his    creditors'   rights    against    his   land   by 


^  Namely,  by  statute  of  Westminster  2,  c.  iS. 

2  By  I  &  2  Vict.  c.  no,  §  11.  ^  By  32  Henry  VIII.  c.  i. 

10 


146        A   BRIEF  SURVEi"  OF  EQUITY  JURISDICTION. 

devising  the  latter;  for  the  creditor  would  then  have  no  right 
against  the  heir,  as  the  latter  would  inherit  nothing  from  his 
ancestor,  and  he  would  have  no  right  against  the  devisee,  as  the 
latter  would  be  under  no  obligation  to  him.  These  two  mischiefs 
were,  however,  remedied  soon  after  the  English  Revolution,  by 
3  &  4  VVm.  &  M.  c.  14. 

What  was  the  remedy  at  law  of  a  specialty  creditor  against  an 
heir?  In  some  respects  it  was  very  similar  to  his  remedy  against 
the  executor,  but  in  other  respects  it  was  materially  different. 
First,  the  creditor  brought  an  action  of  debt  against  the  heir  upon 
the  bond  ;  but  as  the  heir  was  personally  liable,  the  action  was  in 
the  debet  et  detinet,  —  not  in  the  detinet  only,  as  in  case  of  an  action 
of  debt  against  an  executor.  Secondly,  if  the  heir  had  no  assets 
by  descent,  he  must  plead  that  fact  as  an  affirmative  defence  ;i 
otherwise  it  would  be  assumed  that  he  had  sufficient  assets.^  If  he 
did  so  plead,  and  the  plaintiff  traversed  his  plea,  and  issue  was 
joined  upon  the  traverse,  the  question  at  the  trial  was,  whether  the 
heir  had  (my  assets  by  descent.  If  the  jury  found  that  he  had  not, 
of  course  their  verdict  was  in  his  favor  ;  but  if  they  found  that  he 
had  assets,  to  ever  so  small  an  amount,  they  must  find  a  verdict  for 
the  plaintiff,  on  which  the  latter  would  have  judgment  for  his  entire 
debt  against  the  heir  personally.^  If  the  heir  had  some  assets,  but 
yet  wished  to  guard  against  any  liability  beyond  such  assets,  he  must 
plead  that  he  had  no  assets  except  what  were  specified  in  his  plea, 
and  then  he  must  specify  and  describe  the  assets  which  he  had  by 
descent.  If  the  heir  so  pleaded,  and  the  plaintiff  did  not  choose 
to  controvert  the  truth  of  the  plea,  the  latter  could  take  judgment 
for  his  entire  debt,  his  execution,  however,  to  be  limited  to  the 
assets  in  the  heir's  possession.*  If,  however,  the  plaintiff  traversed 
the  plea,  and  issue  was  joined  on  the  traverse,  the  question  at  the 
trial  was  whether  the  heir  had  any  more  assets  than  he  had  ad- 
mitted. If  the  jury  found  that  he  had  not,  their  verdict  must  be 
in  his  favor,  and  hence-  the  plaintiff  lost  the  benefit  of  such  assets 


1  The  plea  by  which  such  a  defence  is  set  up  is  c-aXi&A  z.^\&-a.olriens  per  descent. 
See  supra,  p.  135,  n.  (5). 

2  Henningham's  Case,  Dyer,  344^;  Brandlin  v.  Millbauk,  Carth.  93,  Comb.  162; 
Smith  V.  Angel,  7  Mod.  40,  i  Salk.  354;  2  Ld.  Raym.  783;  Hinde  v.  Lyon,  2  Leon.  11  ; 
Davy  V.  Pepys,  Plow.  438  a. 

8  21  E.  3.  ()b,  cited  in  Davy  v.  Pepys,  Plow.  438 rt,  440.  Such  a  judgment  is  called 
2l general  \\xAgxn&v\\.  against  the  heir. 

*  Anon.,  Dyer,  373  (J,  pi.  14 ;  Davy  v.  Pepys,  Plow.  438  a.  Such  a  judgment  is  called 
a  special  judgment  against  the  heir. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        1 47 

as  the  heir  admitted  that  he  had.^  If  the  jury  found  that  the  heir 
had  more  assets  than  he  had  admitted,  to  ever  so  small  an  amount, 
they  must  find  a  verdict  for  the  plaintiff,  on  which  the  latter  would 
be  entitled  to  a  judgment  for  his  entire  debt  against  the  heir  per- 
sonally.2  It  will  be  seen,  therefore,  that  judgments  against  heirs 
differed  from  judgments  against  executors  in  two  particulars ; 
namely,  first,  that  a  judgment  against  an  heir  was  always  for  the 
full  amount  of  the  plaintiff's  debt,  though  the  execution  might  be 
limited  to  the  assets  in  the  heir's  possession  ;  secondly,  that,  when- 
ever a  judgment  against  an  heir  rendered  him  personally  liable, 
the  judgment  was  against  him  personally  in  form,  as  well  as  in 
legal  effect.  The  reason  of  the  first  of  these  differences  was  that  an 
executor  who  admitted  a  limited  amount  of  assets  in  his  hands, 
did  not  specify  such  assets,  but  stated  their  value  in  money  ;  and 
hence  the  proper  way  of  limiting  the  executor's  liability  to  the 
amount  of  assets  in  his  hands  was  by  limiting  the  judgment  to  the 
amount  of  money  admitted  by  the  executor  to  be  the  value  of 
the  assets  in  his  hands.  An  heir,  on  the  other  hand,  who  admitted 
a  limited  amount  of  assets,  specified  and  described  such  assets, 
but  did  not  state  their  value.  Indeed,  as  we  shall  see  presently,  the 
only  question,  as  to  the  value  of  such  assets,  was  as  to  their  annual 
value,  and  that  was  not  ascertained  till  after  an  execution  had 
issued  ;  and  hence  the  only  way  of  limiting  the  heir's  liability  was 
by  limiting  the  execution  to  the  specific  assets  in  the  heir's 
possession.  The  reason  of  the  second  difference  was  that,  as 
the  heir  was  bound  by  the  bond,  and  as  the  assets  which  he 
had  received  by  descent  were  as  much  his  own  as  any  of  his 
other  property,  there  was  no  reason  why  a  judgment  against  him 
should  not  bind  him  personally,  in  form  as  well  as  in  legal  effect, 
unless  he  employed  the  proper  means  for  limiting  the  judgment  to 
the  assets  by  descent  in  his  possession. 

In  respect  to  the  mode  in  which  it  was  enforced,  a  judgment 
against  an  heir  differed  widely  from  a  judgment  against  an  ex- 
ecutor. A  general  judgment  against  an  heir,  i.e.,  a  judgment  which 
was  not  limited  to  the  assets  which  he  had  by  descent,  did  not 
differ  at  all,  either  in  its  form  or  in  respect  to  the  mode  in  which 
it  was  enforced,  from  ordinary  judgments.  On  the  other  hand,  a 
special   judgment    against    an    heir,    i.e.,   a    judgment  which   was 

1  See  I  Rol.  Abr.  929  (B.),  pi.  2. 

2  Hincle  v.  Lyon,  2  Leon.  11 ;  per  Holt,  C.  J.,  in  Smith  v.  Angel,  7  Mod.  40,  44. 
See  supra,  p.  146,  n.  (3). 


148        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

limited  to  the  assets  which  he  had  by  descent,  could  be  enforced 
only  against  such  assets.  What  was  the  nature  of  the  execution 
which  issued  on  such  a  judgment?  At  common  law,  as  well  as 
by  statute  in  England,  the  only  kind  of  execution  against  land 
was  (and  is)  an  extent.^  Ordinarily,  as  has  been  seen,  the 
land  of  a  judgment  debtor  could  not  be  taken  on  execution 
at  common  law,  and  even  when  an  extent  was  given  by 
statute  it  was  limited  to  one  half  of  the  land  belonging  to  the 
judgment  debtor;  but  a  judgment  against  an  heir  on  the 
obligation  of  his  ancestor,  i.e.,  when  the  judgment  was  limited 
to  the  assets  which  the  heir  had  by  descent,  was  an  excep- 
tion to  the  general  rule  in  both  of  the  foregoing  particulars ;  and 
the  reason  is  obvious.  If  such  a  judgment  could  not  have  been 
satisfied  out  of  the  land  which  had  descended  to  the  heir,  it  could 
not  have  been  satisfied  at  all,  and  so  would  have  been  worthless.^ 
Therefore,  an  extent  could  be  issued  on  such  a  judgment  at 
common  law;  and  whenever  an  extent  issued  at  common  law,^  it 
went  against  all  the  land  that  was  liable,  the  arbitrary  limitation 
of  an  extent  to  one  half  of  the  debtor's  land  existing  only  by 
statute. 

Such,  then,  being  the  remedy  provided  by  the  common  law  for 
enforcing  against  an  heir  an  obligation  imposed  upon  him  by  his 
ancestor,  was  there  any  sufficient  reason  for  permitting  the  owner 
of  such  an  obligation  to  sue  in  equity?  It  may  be  admitted  at 
once  that  the  reason  which  had,  perhaps,  the  greatest  force  in  the 
case  of  an  executor,  namely,  the  incompetency  of  a  jury  to  take 
an  account,  had  but  little  force  in  case  of  an  heir;  for  as  against 
an  heir  there  was  no  account  to  be  taken,  and  the  question,  what 
land  an  heir  had  by  descent,  was  not  an  unfit  question  for  a  jury 
to  deal  with.  There  were,  however,  other  reasons  for  permitting 
an  heir  to  be  sued  in  equity,  which  are  believed  to  have  been 
abundantly  sufficient.  First,  when  an  heir  alleged  that  he  had  not 
sufficient  land  by  descent  to  enable  him  to  perform  an  obligation 


'  See  supra,  p.  145.  The  reader  must  not  be  misled  by  the  name  of  a  writ  of  eleirit. 
This  name  (which  was  taken  from  a  word  which  the  writ  always  contained  when  legal 
proceedings  were  in  Latin)  has  nothing  to  do  with  the  nature  or  legal  operation  of  the 
writ.  Every  ehqif  is  an  extent,  though  not  every  extent  is  an  elegit.  An  extent  made 
under  an  elegit  differs  from  other  extents  only,  first,  in  being  made  under  the  authority 
of  a  statute,  and,  secondly,  in  being  limited  to  one  half  of  the  land. 

2  .See  Sir  William  Harbert's  Case,  3  Rep.  i\b,  12a. 

3  An  extent  at  the  suit  of  the  king  is  the  typical  case  of  an  extent  at  common  law. 
Land  could  always  be  taken  in  execution  to  satisfy  a  judgment  in  favor  of  the  king. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         149 

imposed  upon  him  by  his  ancestor,  justice  required  that  it  be 
ascertained  what  hind  he  had  by  descent;  and  yet  all  that  the 
common-law  courts  did,  or  could  properly  do,  was  to  ascertain 
whether  he  had  any  land  by  descent,  or  any  more  than  he  had  ad- 
mitted having.  Secondly,  in  order  to  ascertain  how  much  land 
an  heir  had  by  descent,  or  whether  he  had  any,  or  whether  he  had 
any  more  than  he  had  admitted  having,  it  must  first  appear  of 
what  land  the  ancestor  died  seised  in  fee  simple,  and  that  must  be 
shown  by  the  creditor;  and  yet  it  is  a  fact  which  the  creditor 
would  not  presumably  be  able  to  show  without  assistance  from  the 
heir.  Justice,  therefore,  required  that  the  heir  should  state  upon 
oath  of  what  land  his  ancestor,  to  his  knowledge,  died  seised  in  fee 
simple  ;^  and  yet  equity  alone  could  compel  an  heir  to  do  this,  an 
heir  not  being  amenable  to  the  ecclesiastical  courts,  nor  required 
to  exhibit  an  inventory  of  his  ancestor's  lands.  But,  thirdly,  the 
part  of  the  common-law  remedy  which  was  most  strikingly  inade- 
quate was  the  execution.  An  extent  is  a  very  unsatisfactory 
execution  at  best ;  for  it  requires  the  creditor  to  take  possession 
of  the  land,  and  hold  it  (in  effect)  as  a  lessee,  at  a  rent  fixed  by 
a  sheriff's  jury,  until  he  obtains  satisfaction  of  his  judgment  by  re- 
taining the  rent;  and  it  may  be  years  before  this  object  will  be 
accomplished.  As  against  an  heir,  however,  the  inadequacy  of 
such  an  execution  is  still  more  marked.  When  a  debtor  dies,  as 
it  is  then  certain  that  the  property  which  he  leaves  behind  him 
constitutes  the  only  means  by  which  his  debts  will  ever  be  paid, 
justice  to  his  creditors  requires  that  his  property  be  applied 
at  once  to  the  payment  of  his  debts.  When,  therefore,  a  creditor 
obtains  a  judgment  which  must  be  satisfied,  if  at  all,  out  of  his 
debtor's  land,  the  judgment  ought  to  be  satisfied  out  of  the  corpus 
of  such  land,  and  there  is  no  propriety  in  compelling  the' creditor 
to  wait  until  he  can  obtain  satisfaction  out  of  the  incomt^.  But 
this  is  not  all  ;  for,  if  there  were  several  creditors,  they  could" 
enjoy  the  land  only  fn  succession,  and  hence,  when  one  had 
obtained  a  judgment  and  extended  the  land,  all  the  others  must 
wait  till  his  debt  was  satisfied,  and  the  last  one  must  wait  till  all 
the  others'  debts  were  satisfied  ;  and  yet  the  corpus  of  the  land 
might  be  sufficient  to  pay  all  the  creditors  in  full.  Fourthly,  as  an 
extent  had  no  retroactive  effect,  there  was  no  way,  at  common 
law,  of  reaching  the  income  of  the  land  between  the  ancestor's 

1  See  supra,  p.  140. 


ISO        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

death  and  the  making  of  the  extent ;  and  yet  the  land  could  not 
be  extended  until  an  action  had  been  brought  against  the  heir,  and 
a  judgment  recovered. 

For  the  foregoing  reasons,  it  seems  never  to  have  been  doubted 
that  an  heir  could  be  sued  in  equity  by  a  creditor  of  his  ancestor. 
Equity  treated  an  heir  just  as  it  did  an  executor,  mutatis  mutandis, 
i.e.,  it  held  him  liable  only  to  the  extent  of  assets  which  he  had 
received  by  descent ;  but  it  held  that  the  corpus  of  such  assets,  as 
well  as  the  rents  and  profits  produced  by  them  subsequently  to 
the  ancestor's  death,  should  be  applied  immediately  to  the  pay- 
ment of  those  specialty  debts  of  the  ancestor  for  which  the  heir 
was  bound.  Accordingly,  when,  upon  a  bill  filed  against  the  heir 
by  the  owner  of  such  a  debt,  the  plaintiff  had  proved  his  claim, 
and  the  court  had  ascertained  what  land  the  heir  had  by  descent, 
a  decree  was  made  that  such  land,  or  a  sufficient  portion  of  it,  be 
sold  under  the  direction  of  a  Master,  that  the  heir  execute  a  con- 
veyance pursuant  to  the  sale,  and  that  the  proceeds  of  the  sale  be 
applied,  so  far  as  necessary,  to  the  payment  of  the  plaintiff's 
claim,  the  surplus,  if  any,  going  to  the  heir;  ^  and,  if  necessary,  the 
decree  further  directed  an  account  by  the  heir  of  the  rents  and 
profits  of  the  land  between  the  death  of  the  ancestor  and  the  sale.^ 

I  have  said  that  debts  by  matter  of  record  did  not  share  with 
specialty  debts  the  advantage  of  being  secured  by  the  liability  of 
the  heir.  The  former,  however,  in  turn  had  advantages  of  their 
own,  which  they  did  not  share  with  debts  of  any  other  class. 
First,  all  matters  of  record  (and  therefore  recognizances  and  stat- 
utes) stand  upon  the  same  footing  as  judgments  in  this  respect; 
namely,  that  they  neither  require  proof,  nor  can  be  impeached. 
Therefore,  an  execution  can  issue  upon  a  recognizance  or  statute 
just  as  upon  a  judgment.  Secondly,  the  statute  of  Westminster  2 
(13  Edward  I.),  c.  18,  having  given  to  conusees  of  recognizances, 
as  well  as  to  judgment  creditors,  a  right  to  extend  one  half  of  the 
land  of  their  conusors  or  judgment  debtors,  this  right  was  held  to 
constitute  a  general  lien  upon  the  land  of  the  conusors  or  judg- 
ment debtors,  as  well  that  which  they  owned  when  the  recogni- 
zance was  acknowledged  or  the  judgment  recovered,  as  that  which 
they  afterwards  acquired  ;  and  the  death  of  a  conusor  or  judgment 
debtor  did  not  affect  this  lien,  or  the  right  to  issue  an  execution 

1  See  Seton,  Decrees  (ist  ed.)  82  et  seq. ;  Eddis,  Administration  of  Assets,  c.  7. 

2  Davies  v.  Topp,  i  Bro.  C.  C.  524;  Seton,  Decrees  (ist  ed.)  95-8;  Stratford  v. 
Ritson,  10  Beav.  25;  Schomberg  v.  Hunifrey,  i  Dr.  &  W.  411. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         151 

to  enforce  it,  otherwise  than  by  making  it  necessary  for  the  conu- 
see  or  judgment  creditor  first  to  issue  a  scire  facias.  Hence,  such 
conusee  or  judgment  creditor,  while  he  could  not  maintain  an 
action  against  the  heir  of  the  deceased  conusor^  or  judgment 
debtor,  and  had  no  claim  upon  more  than  one  half  of  the  land 
which  had  descended  to  such  heir,^  yet  he  could  (subject  only  to 
the  condition  of  first  issuing  a  scire  facias^  issue  an  execution,  and 
have  one  half  of  such  land  extended,  including  not  only  the  land 
which  the  conusor  or  judgment  debtor  owned  at  the  time  of  his 
death,  but  also  the  land  which  he  owned  when  the  recognizance 
was  acknowledged  or  the  judgment  recovered,  or  had  owned  at  any 
time  since,  whoever  might  be  the  owner  of  it  when  the  extent  was 
made;  and  this  was  a  right  of  which  the  creditor  could  not  be 
deprived  except  by  his  own  act. 

Conusees  of  statutes,  in  respect  to  their  rights  against  the  land 
of  their  conusors,  had  an  advantage  even  over  judgment  creditors 
and  conusees  of  recognizances  ;  for  the  statutes,  from  which  the 
rights  of  the  former  were  derived,  authorized  them  to  have  all  the 
land  of  their  conusors  extended  instead  of  one  half  of  it/^ 

Could  then  a  judgment  creditor,  or  a  conusee  of  a  recognizance 
or  statute,  instead  of  resorting  to  his  scire  facias  and  execution  at 
law  against  the  land  of  his  deceased  judgment  debtor  or  conusor, 
file  a  bill  in  equity  against  the  owner  or  owners  of  such  land  ?  As 
against  any  one  but  the  heir  or  devisee  of  the  judgment  debtor  or 
conusor  {i.e.,  as  against  any  one  who  had  acquired  his  title  before 
the  death  of  the  latter),  he  clearly  could  not ;  for  as  to  such  a  per- 
son his  position  would  not  be  at  all  changed  by  the  death  of  the 
judgment  debtor  or  conusor,  nor  would  he  have  any  equity  against 
him.  Could  he  file  a  bill  against  the  heir  or  devisee  of  the  de- 
ceased judgment  debtor  or  conusor  to  reach  the  land  which  had 
descended  or  been  devised  to  him?  In  favor  of  a  negative  answer 
to  this  question,  it  may  be  said  that  the  execution  at  law  against 
land  was  not  open  to  so  great  an  objection  in  the  mouth  of  a 
creditor  by  matter  of  record  as  in  the  mouth  of  a  specialty  creditor ; 
for  the  rights  of  creditors  by  matter  of  record  were  always  succes- 
sive, priority  of  time  giving  priority  of  right,  while  the  rights  of 
all  specialty  creditors  were  concurrent  and  equal.     Still,  the  ques- 

^  Sir  W.  Harbert's  Case,  3  Rep.  lib,  15a;  Anon.,  Dyer,  271  a,  pi.  25;  Stileman  v. 
Ashdown,  2  Atk.  608. 

-  See  Stileman  v.  Ashdown,  supra. 

8  Sir  W.  Harbert's  Case,  3  Rep.  11  ^,  12  a. 


152        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

tion  must  be  answered  in  the  affirmative,  equity  holding  tliat  every 
creditor  of  a  deceased  debtor  is  entitled  to  have  all  the  debtor's 
property,  so  far  as  he  has  a  claim  upon  it,  applied  immediately  to 
the  payment  of  his  debt ;  and  therefore  the  relief  given,  in  the 
case  now  under  consideration,  was  the  same  that  was  given  upon  a 
bill  by  a  specialty  creditor,  namely,  a  sale  of  the  land  (or  of  one 
half  of  it,  as  the  case  might  be),  with  an  account  of  the  rents 
and   profits,  if  necessary,  until  the  sale  took  place. ^ 

There  is  also  another  independent  ground  upon  which  the  juris- 
diction of  equity  over  creditors'  bills  against  heirs  or  devisees  may 
be  sustained,  namely,  that  of  preventing  a  multiplicity  of  suits.  To 
a  bill  by  a  creditor  against  an  executor,  an  heir  or  devisee  was  never 
a  necessary  party ;  but  to  a  bill  by  a  creditor  against  an  heir  or 
devisee  as  such,  the  executor  was  always  a  necessary  party .^  The 
reasons  for  the  difference  are  these:  first,  every  creditor  of  a  de- 
ceased debtor  is  entitled  by  law  to  be  paid  out  of  the  debtor's 
personal  estate,  while  only  privileged  classes  of  creditors  are  en- 
titled to  be  paid  out  of  his  land  ;  and  therefore  every  creditor  who 
is  entitled  to  sue  the  heir  or  devisee  of  his  deceased  debtor,  is  en- 
titled a  fortiori  to  sue  his  executor,  while  the  converse,  of  course, 
does  not  hold.  Secondly,  as  between  the  personal  estate  and  the 
land  of  a  deceased  debtor,  the  debts  of  the  latter  fall  by  law  upon 
the  personal  estate,  and  therefore  the  land  is  entitled  to  be  ex- 
onerated from  the  debts  by  the  personal  estate.  In  other  words, 
the  land,  even  when  it  is  liable  to  the  creditor,  is  by  law  liable 
only  as  surety  for  the  personal  estate,  which  is  the  principal  debtor. 
Therefore,  though  the  creditor  is  entitled  to  go  against  the  land  or 
the  personal  estate,  at  his  pleasure,^  yet,  if  he  wish  to  go  against 
the  land  in  equity,  he  will  be  required  to  go  against  the  personal 
estate  at  the  same  time,  by  making  the  executor  a  co-defendant  to 
his  suit,  and  praying  relief  against  him  as  well  as  against  the  heir 
or  devisee  ;  and  thereupon  the  court  will  direct  the  personal  estate 
to  be  applied  in  the  first  instance  to  the  payment  of  the  plaintiff's 
debt,  and  will  direct  so  much  only  of  the  debt  to  be  paid  out  of 
the  land  as  shall  remain  unpaid  after  the  personal  estate  has  been 
exhausted.*     If,  however,  an  heir  or  devisee  could  not  be  sued  in 

1  Stileman  v.  Ashdown,  2  Atk.  477,  481,  608,  Ambl.  13. 

2  Knight  V.  Knight,  3  P.  Wms.  331 ;  Plunket  v.  Penson,  2  Atk.  51  ;  Robinson  v.  Bell, 
I  De  G.  &  Sm.  630. 

3  Quarles  v.  Capell,  Dyer,  204(5,  pi.  2;  Davy  z^.  Pepys,  Plow.  438  a,  439  a;  Davies  v. 
Churchman,  3  Lev.  189. 

*  Seton,  Decrees  (ist  ed)  82  et seq. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         153 

equity  by  a  creditor  of  his  ancestor  or  testator,  it  would  follow  that 
three  actions  or  suits  might  be  necessary  to  accomplish  what  can 
be  accomplished  without  difficulty  by  one  suit  in  equity  ;  for  the 
creditor  might  first  sue  the  heir  or  devisee  at  law,  and  having  thus 
obtained  payment  of  his  debt  in  part,  he  might  then  sue  the  exec- 
utor at  law  or  in  equity  for  the  remainder ;  and,  lastly,  the  heir  or 
devisee  might,  on  the  principle  of  subrogation,  sue  the  executor  in 
equity,  and  recover  back  what  he  had  been  compelled  to  pay; 
clearly,  therefore,  whenever  a  creditor  who  sues  an  executor  in 
equity,  is  entitled  also  to  call  upon  the  heir  or  devisee  for  payment 
of  his  debt,  he  may  make  the  latter  a  co-defendant  to  his  suit,  on 
the  principle  of  preventing  a  multiplicity  of  suits. 


ARTICLE     VII. 


Creditors'  Bills  {Continued). 

IN  the  preceding  article  the  writer  was  compelled  to  confine 
himself  strictly  to  the  question,  why  Equity  has  jurisdiction 
over  creditors'  bills ;  and,  therefore,  nothing  was  said  as  to  the 
consequences  which  have  followed  from  the  establishment  of  that 
jurisdiction.  And  yet  those  consequences  are  much  more  im- 
portant, if  not  more  interesting,  than  the  mere  fact  of  the 
existence  of  the  jurisdiction  or  the  reasons  upon- which  it  was 
founded.  To  those  consequences,  therefore,  the  reader's  attention 
will  be  directed  in  the  present  article. 

Prior  to  the  establishment  of  the  jurisdiction  over  creditors* 
bills  equity  had  nothing  to  do  with  the  administration  of  the 
estates  of  deceased  persons.  Now,  the  personal  estates  of  all 
deceased  persons  are,  in  England,  administered  in  equity;  and 
the  first  stage  in  this  great  legal  revolution  was  the  establishment 
of  the  jurisdiction  of  equity  over  creditors'  bills. 

The  administration  of  the  personal  estate  of  a  deceased  person 
consists  first  in  collecting  the  debts  due  to  the  estate,  and  in  con- 
verting the  specific  property,  not  specifically  bequeathed,  into 
money;  secondly,  in  paying  the  debts  due  from  the  estate,  in 
delivering  the  specific  legacies,  in  paying  the  pecuniary  legacies, 
and  in  paying  the  residue  to  the  residuary  legatee  or  next  of  kin, 
as  the  case  may  be.  The  doing  of  these  various  acts  constitutes 
the  duty  of  the  executor.^     If  he  does  them  voluntarily,  and  to 

1  5  Harv.  L.  Rev.  ioi. 

2  As  there  are  no  material  differences,  for  the  purposes  of  this  article,  between  an 
executor  and  an  administrator,  it  will  generally  be  assumed  that  the  deceased  person  is  a 
testator,  and  that  his  personal  representative  is  an  executor. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         155 

the  satisfaction  of  all  tlic  persons  interested  in  havin<:^  them  done, 
there  will  be  no  occasion  for  resorting  to  any  court,  and  the  estate 
will  be  administered  out  of  court.  If  the  executor  fail  to  do  his 
duty,  or  if  a  claim  be  made  against  the  estate  which  the  executor 
refuses  to  admit,  or  if  the  persons  interested  in  the  estate  cannot 
agree  as  to  their  respective  rights,  a  court  must  be  applied  to. 
Of  course,  the  court  must  be  one  which  has  jurisdiction  over  the 
subject  of  the  application,  and  the  application  must  be  made  by  a 
person  who  has  the  legal  interest  in  the  subject,  i.e.,  by  a  cred- 
itor, a  legatee,  or  a  next  of  kin  of  the  deceased.^  If  the  applica- 
tion is  to  be  made  by  a  creditor,  originally  a  court  of  common 
law  could  alone  be  applied  to ;  if  by  a  legatee  or  next  of  kin, 
originally  the  proper  ecclesiastical  court  could  alone  be  applied 
to.  As  soon  as  equity  assumed  jurisdiction  over  creditors'  bills, 
a  creditor  could,  of  course,  apply  to  a  court  of  common  law  or  to 
a  court  of  equity,  at  his  option.  But  so  long  as  the  ecclesiastical 
courts  could  alone  be  resorted  to  by  legatees  and  next  of  kin, 
equity  could  not  fully  administer  the  estate  of  any  deceased  per- 
son, unless  it  turned  out  to  be  insolvent,  and  so  was  wholly 
exhausted  by  creditors. 

The  next  step  taken  by  equity  was  to  assume  jurisdiction  over 
bills  by  legatees  and  next  of  kin,  and  this  it  did  soon  after  its 
jurisdiction  over  creditors'  bills  was  established.  Of  the  reasons 
why  this  was  done,  little  need  be  said  in  this  place.^  Suffice  it  to 
observe  that,  in  thus  extending  its  jurisdiction,  equity  relied  much 
upon  the  strong  arm  of  the  Court  of  Chancery  (coupled  with  the 
weakness  and  unpopularity  of  the  ecclesiastical  courts)  and  little 
upon  argument.  Thus,  on  the  iith  day  of  May,  1682,  a  plea  to 
a  bill  by  next  of  kin,  that  the  jurisdiction  was  in  the  Ordinary,  was 
overruled  by  Lord  Chancellor  Nottingham,  no  reason  being  re- 
ported; *^  and  on  the  6th  of  February  following,  in  two  cases,  a 
demurrer  to  a  similar  bill  met  the  same  fate  at  the  hands  of 
Lord  Keeper   North,    no  other   reason    being  given    than    "  that 

1  Sometimes,  as  will  be  seen  hereafter,  the  executor  himself  may  file  a  bill  in  equity; 
but  the  bill  is,  in  that  case,  in  the  nature  of  a  bill  of  interpleader.     See  infra,  p.  179. 

-  Of  course  this  is  not  the  proper  place  to  inquire  into  the  jurisdiction  of  equity  over 
bills  by  legatees  and  next  of  kin.  Such  bills  are,  however,  so  intimately  connected  with 
creditors'  bills  that  it  has  been  found  impracticable  to  avoid  speaking  of  them  incidentally 
in  the  present  article.  Moreover,  every  administration  bill,  by  whomsoever  filed,  neces- 
sarily results  in  the  application  of  the  estate,  so  far  as  is  necessary,  to  the  payment  of  the 
debts  of  the  deceased. 

8  Pamplin  v.  Green,  3  Ch.  Cas.  95. 


156        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  spiritual  court  in  that  case  had  but  a  lame  jurisdiction."'' 
As  to  the  precise  time  when  equity  first  assumed  jurisdiction 
over  bills  by  legatees,  there  seems  to  be  an  absence  of  evidence ; 
but  there  is  little  room  for  doubt  that  it  was  at  an  earlier  date 
than  that  just  named.  There  was,  indeed,  a  serious  objection 
to  the  jurisdiction  of  equity  over  bills  by  next  of  kin,  which  had 
no  existence  in  the  case  of  bills  by  legatees ;  for  it  was  argued 
(and  not  without  force)  that  the  Statute  of  Distributions,'-^  on 
which  the  rights  of  next  of  kin  are  founded,  vested  exclusively  in 
the  Ordinary  the  jurisdiction  of  compeUing  payment  of  distributive 

shares. 

The  Court  of  Chancery  was  never  content  to  share  with  the 
ecclesiastical  courts  any  jurisdiction  exercised  by  it,  and,  therefore, 
as  often  as  it  usurped  the  jurisdiction  of  the  latter  courts,  it  soon 
found  the  means  of  making  its  own  jurisdiction  exclusive;  and  so 
it  was  in  the  case  now  under  consideration.  The  Court  of  Chancery 
ever  lent  a  willing  ear  to  the  complaints  of  executors  who  were 
sued  by  legatees  or  next  of  kin  in  the  ecclesiastical  courts;  and  it 
did  not  hesitate  to  grant  injunctions  whenever  it  was  dissatisfied 
with  the  mode  in  which  justice  was  administered  by  the  latter 
courts ;  ^  and  even  when  a  final  sentence  had  been  given  in  an 
ecclesiastical  court,  the  Court  of  Chancery  exercised  the  right  of 
examining  it;  and,  if  it  disapproved  of  it,  it  treated  it  as  a  nullity.* 
The  jurisdiction  of  the  ecclesiastical  courts  over  legacies  and  dis- 
tributive shares  was,  therefore,  for  all  practical  purposes,  speedily 
destroyed,  and  for  the  last  two  hundred  years  equity  has  prac- 
tically exercised  an  exclusive  jurisdiction  over  those  subjects,  the 
jurisdiction  of  the  ecclesiastical  courts  over  the  estates  of  persons 
deceased  having,  for  the  same  length  of  time,  been  practically 
limited  to  taking  the  probate  of  wills,  granting  letters  testamentary 
and  of  administration,  and  requiring  the  filing  of  inventories  by 
executors  and  administrators. 

Equity,  having  thus  acquired  concurrent  jurisdiction  {i.e.,  con- 

1  Matthews  v.  Newby,  i  Vern.  133  ;  Howard  v.  Howard,  id.  134. 

2  22  &  23  Car.  II.,  c.  10  (1670).  That  the  statute  assumed  that  the  ecclesiastical 
courts  alone  would  have  jurisdiction  to  enforce  the  rights  created  by  it,  was  never 
doubted  ;  and  the  only  answer  that  was  ever  given  to  the  argument  founded  on  the 
statute  was  that  the  latter  contained  no  negative  words,  i.e.,  did  not  in  terms  exclude  the 
jurisdiction  of  equity.     See  Matthews  v.  Newby,  stipra. 

8  Vanbrough  v.  Cock,  i  Ch.  Cas.  200;  Horrell  v.  Waldron,  i  Vern.  26;  Nicholas  z'. 
Nicholas,  Ch.  Free.  546;  Anon.,  i  Atk.  491.     But  see  Basset  v.  Basset,  3  Atk.  203. 
<  Bissell  V.  Axtell,  2  Vern.  47. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         157 

current  with  courts  of  common  law)  over  the  claims  of  creditors 
of  deceased  persons,  and  exclusive  jurisdiction  over  the  claims  of 
legatees  and  next  of  kin,  had  jurisdiction  to  administer  fully  and 
completely  the  personal  estate  of  any  deceased  person,  when 
properly  applied  to  for  that  purpose,  —  a  jurisdiction  which  no 
one  court  had  ever  before  possessed;  and  the  best  justification  of 
the  Court  of  Chancery  in  extending  its  jurisdiction  to  bills  by 
legatees  and  next  of  kin  will  be  found  in  the  need  there  was  that 
some  one  court  should  have  jurisdiction  to  administer  the  estates 
of  deceased  persons  in  respect  as  well  to  the  claims  of  creditors 
as  to  the  claims  of  legatees  and  next  of  kin. 

The  acquisition  of  the  necessary  jurisdiction  was,  however,  only 
the  beginning  of  the  task  which  equity  had  before  it.  The  diffi- 
culty which  it  next  encountered  lay  in  the  fact  that  it  had  no  suit- 
able machinery  for  administering  the  estates  of  deceased  persons. 
The  only  (or  rather  the  best)  machinery  that  it  had  for  the  pur- 
pose was  that  furnished  by  an  ordinary  suit;  but  that  was  neither 
adequate  nor  suitable.  The  only  thing  at  all  analogous  which 
equity  had  been  called  upon  to  do  was  to  administer  the  estate 
of  a  bankrupt  debtor ;  but  that  was  done,  not  by  a  suit, 
but  by  a  proceeding  specially  provided  for  the  purpose  by 
statute.  If  it  be  asked  why  it  was  not  sufficient  for  any  creditor, 
legatee,  or  next  of  kin,  whose  claim  was  not  satisfied,  to  bring  a 
suit  against  the  executor  to  enforce  such  claim,  it  may  be 
answered,  first,  that  it  did  not  lie  in  the  mouth  of  equity,  in  view 
of  its  recent  extension  of  its  jurisdiction,  to  say  that  nothing 
further  was  necessary,  as  a  creditor,  legatee,  or  next  of  kin  could 
always  sue  the  executor,  the  former  at  common  law,  the  two 
latter  in  the  ecclesiastical  courts ;  secondly,  that  no  one  suit 
by  a  creditor,  legatee,  or  next  of  kin,  against  the  executor,  to 
enforce  his  individual  claim,  would  enable  equity  to  administer 
the  estate,  nor  would  any  number  of  separate  suits  of  that  kind. 
On  the  contrary,  such  a  mode  of  proceeding  would  have  assumed 
that  every  estate  of  a  deceased  person  was  to  be  administered  out 
of  court,  a  court  being  applied  to  only  when  some  individual 
claimant  had  some  complaint  to  make  against  the  executor. 
Thirdly,  if  an  estate  is  to  be  administered  by  a  court,  it  must  be 
administered  by  some  one  suit  or  proceeding.  The  administra- 
tion of  an  estate  consists  in  dividing  it  among  the  several  persons 
who  have  interests  in  it  or  claims  upon  it,  according  to  their 
respective  rights ;  and,  to  enable  a  court  so  to  divide  an  estate,  it 


158        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

must  ascertain,  not  only  who  such  persons  are,  but  what  are  their 
respective  rights;  and,  in  order  to  enable  it  to  do  the  latter,  it 
must  have  all  such  persons  before  it  (or  at  least  it  must  give  them 
all  an  opportunity  to  come  before  it)  together;  and  this  latter 
object  can  be  accomplished  only  by  means  of  one  suit  or  pro- 
ceeding. In  short,  when  a  court  undertakes  to  administer  an 
estate,  it  must  consider  the  claim  of  every  particular  person  in 
connection  with  the  claims  of  all  other  persons,  and  it  cannot 
dispose  of  any  one  person's  claim  separately  and  by  itself. 
Fourthly,  equity  was  called  upon  to  provide  some  means  of  ad- 
ministering the  estates  of  deceased  persons,  as  well  to  satisfy  the 
demands  of  justice  as  to  justify  itself  in  assuming  complete  juris- 
diction over  such  estates.  That  equity  was  called  upon  to  do 
this  in  order  to  satisfy  the  demands  of  justice,  in  the  case  of  all 
estates  which  were,  or  might  prove  to  be,  insolvent  is  plain;  but 
in  truth  the  need  was  not  confined  to  such  estates.  An  estate 
might,  indeed,  be  so  clearly  solvent  that  the  executor  would  be 
perfectly  willing  to  pay  all  debts  and  all  specific  and  pecuniary 
legacies;  but  an  executor  could  scarcely  ever  be  perfectly  safe  in 
paying  over  the  residue  without  the  authority  of  some  court 
which  had  the  power  and  the  will  to  protect  him,  because  he 
could  never  be  sure  that  debts  would  not  afterwards  appear  for  which 
he  would  be  liable.^  Moreover,  in  cases  where  the  residue  is 
undisposed  of  by  will,  it  is  frequently  uncertain  who  are  the  next 
of  kin ;  and  wherever  that  is  the  case,  it  must  be  ascertained  and 
decided  by  adequate  judicial  authority  who  the  next  of  kin  are, 
before  the  executor  or  administrator  can  safely  pay  over  the 
residue  to  any  one. 

The  question  then  recurs.  How  could  equity  so  mould  the  pro- 
ceedings in  an  ordinary  suit  as  to  make  the  latter  serve  the  pur- 
pose of  administering  the  estate  of  a  deceased  person?  Equity 
has  done  this,  and  has  done  it  with  at  least  a  fair  degree  of 
success.  In  order  to  understand  clearly  how  it  has  done  it,  it  will 
be  well  to  proceed  by  stages.  Let  us  then  first  take  the  simplest 
case,  namely,  that  of  a  bill  by  a  residuary  legatee  against  the 
executor  for  an  account  and  payment  of  the  residue.  Such  a  bill 
requires  the  court  to  ascertain,  first,  the  amount  of  the  testator's 
personal  estate,  secondly,  the  amount  of  his  debts,  and,  thirdly, 
the  amount  given  by  his  will  in  specific  and  pecuniary  legacies, 

1  Norman  v.  Baldry,  6  Sim.  621  ;  2  Williams,  Executors  (8th  ed.)  1354.  But  see  22 
&  23  Vict.,  c.  35,  s.  29. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 59 

because  it  is  only  in  this  way  that  the  residue  to  which  the  plaintiff 
is  entitled  can  be  ascertained.  Accordingly,  the  first  decree  will 
direct  a  reference  to  a  Master  to  take  an  account  of  the  testator's 
personal  estate,  debts,  and  legacies.  The  first  and  last  of  these 
three  items  will  involve  no  special  difficulty ;  nor  will  the  Master 
have  any  difficulty  in  taking  an  account  of  the  debts,  so  far  as  they 
have  come  to  the  executor's  knowledge;  but  that  is  not  sufficient. 
There  may  be  debts  which  have  not  come  to  the  executor's  knowl- 
edge; and,  if  there  are,  they  must  be  provided  for.  Accordingly, 
the  decree  will  direct  the  Master  to  publish  advertisements  for  all 
creditors  of  the  testator  to  come  in  before  him  and  prove  their 
debts,  and  to  state  in  such  advertisements  the  time  within  which 
they  must  so  come  in  ;  and  the  decree  will  then  declare  that  all 
creditors  who  fail  to  come  in  within  the  time  so  to  be  stated  shall 
be  deprived  of  any  benefit  from  the  decree. 

The  decree  having  been  made,  the  reference  before  the  Master 
will  next  be  proceeded  with.  As  creditors  bring  in  their  claims, 
it  will  be  the  duty  of  the  executor  to  see  that  they  are  fully  proved, 
and  to  resist  them  if  he  thinks  them  not  well  founded.  When, 
however,  the  suit  is  by  the  person  entitled  to  the  residue,  he  will 
have  the  chief  interest  in  resisting  unfounded  claims,  and,  there- 
fore, the  executor  may  leave  to  him  the  responsibility  of  deciding 
what  claims  shall  be  resisted,  and  what  resistance  shall  be  made  to 
them.  If  there  is  any  room  for  doubt  as  to  the  solvency  of  the 
estate,  every  creditor  will  also  be  more  or  less  interested  in  reduc- 
ing the  amount  of  the  debts  as  much  as  possible  ;  and  accordingly 
every  creditor  will  be  entitled  to  resist  the  claim  of  every  other 
creditor.^  If  a  claim  be  rejected,  an  opportunity  will  be  given  to 
the  claimant,  if  he  desire  it,  to  bring  an  action  or  file  a  bill  against 
the  executor  to  establish  his  claim.^  So  if  a  claim  be  contested 
in  apparent  good  faith  and  on  reasonable  grounds,  though  unsuc- 
cessfully, the  claimant  will  generally  be  required  to  bring  an  action 
to  establish  it,  if  the  contestant  insists  upon  a  trial  at  law.^ 

When  all  the  directions  contained  in  the  decree  have  been 
fully  carried  out,  the  Master  will  make  his  report  to  the  court,  and 

1  While  the  executor  may,  in  the  Master's  office,  resist  any  claim  which  he  thinks 
unfounded,  he  cannot  prevent  a  claim's  being  resisted  by  others,  because  he  thinks  it  just, 
the  decree  having  deprived  him  of  the  power  of  waiving  any  legal  defence.  He  cannot, 
therefore,  waive  the  defence  of  the  Statute  of  Limitatiotis.  Shewen  v.  Vanderhorst, 
I  R.  &  M.  347. 

2  See  Lockhart  v.  Hardy,  5  Beav.  305. 
8  See  Fladong  v.  Winter,  19  Ves.  196. 


l60        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

when  this  report  has  been  confirmed,  the  executor  will  be  required 
to  pay  into  court  whatever  money  belonging  to  the  estate  the 
report  shows  to  be  in  his  hands,  i.e.,  whatever  money  the  executor 
is  shown  to  have  received,  and  is  not  shown  to  have  paid  out  for 
some  legitimate  purpose,  or  to  have  lost  without  his  fault.  The 
court  requires  this  of  the  executor  upon  the  ground  that  he  con- 
fessedly holds  the  money  en  autre  droit,  and  that  the  plaintiff  will 
be  entitled  to  what  remains  of  it  after  prior  claims  have  been 
satisfied.  Moreover,  if  the  report  shows  that  any  part  of  the  assets 
consists  of  debts  due  to  the  estate,  and  which  have  not  yet  been 
collected,  or  of  specific  property  which  has  not  yet  been  converted 
into  money,  the  executor  will  be  directed  to  collect  such  debts, 
and  to  convert  such  specific  property  into  money,  as  speedily  as 
it  may  conveniently  be  done,  and  to  pay  into  court  the  money 
thus  realized.-^ 

Finally,  when  the  estate  has  all  been  converted  into  money, 
and  the  money  paid  into  court,  and  when  all  claims  upon  the 
estate,  except  claims  for  costs,  have  been  adjusted,  the  cause 
will  be  set  down  for  a  further  hearing,  and  a  final  decree  will  be 
made,  directing  the  Master  to  tax  the  costs  of  all  parties  whose 
costs  are  to  be  paid  out  of  the  estate,  and  thereupon  directing 
all  claims  upon  the  estate  which  have  been  established,  including 
interest  and  costs,  to  be  paid  out  of  the  money  in  court,  and 
directing  the  residue  of  that  money  to  be  paid  to  the  plaintiff. 

Of  course  it  may  happen  that  some  creditor  of  the  testator 
has  failed  to  come  in  before  the  Master  and  prove  his  debt. 
If  such  should  be  the  case,  what  will  be  the  rights  of 
such  creditor?  At  law,  his  rights  will  remain  the  same  as 
if  no  bill  in  equity  had  ever  been  filed,  and  if  the  estate 
was  sufficient  to  pay  all  creditors  in  full,  he  will  still  have 
a  legal  right  to  compel  the  executor  to  pay  him ;  but  equity 
will  not  permit  him  to  enforce  that  right;  and  he  can,  therefore, 
avail  himself  only  of  such  remedy  as  equity  itself  will  give  him, 
and  equity  will  give  him  no  remedy  whatever  against  the 
executor.^  If,  however,  he  apply  while  the  money  still  remains 
in  court,  he  will  be  let  in  with  the  other  creditors,  and  no  other 
penalty  will  be  imposed  upon  him  than  the  payment  of  such 
costs  as  have  been  occasioned  by  his   coming  in  so  late.^     But  if 

1  This  is  by  virtue  of  the  45th  General  Order  of  Aug.  26,  1841.     See  Sanders,  p.  886. 

2  Farrell  v.  Smith,  2  B.  cS:  B.  337. 

8  Lashley  v.  Hogg,  11  Ves.  602;  Angell  v.  Haddon,  i  Madd.  529;  Brown  v.  Lake, 
I  DeG.  &  Sm.  144. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         l6l 

the  money  be  paid  out  of  court  before  his  claim  is  presented,  all 
that  the  court  can  do  for  him  is  to  permit  him  to  file  a  bill  against 
the  person  or  persons  upon  whom  his  debt  would  have  fallen,  if 
it  had  been  paid,  to  compel  him  or  them  to  pay  his  debt  out  of 
what  he  or  they  have  received  from  the  estate;  and  this  it  will 
generally  permit  him  to  do.  But  if  the  debt,  in  case  it  had  been 
paid,  would  have  fallen  upon  several  persons,  he  will  be  permitted 
to  recover  only  a  pro  rata  share  from  each,  and  not  the  whole 
from  any  one.^ 

Here  then  is  one  instance  in  which  equity  completely  admin- 
isters the  estate  of  a  deceased  person  by  means  of  an  ordinary 
suit,  and  does  so,  as  is  believed,  without  introducing  any  anomaly, 
and  without  violating  any  of  the  principles  of  procedure.  It  is 
true  that  we  have  the  spectacle  of  a  suit,  brought  by  A  against  R, 
being  used  as  a  means  of  satisfying  a  claim  made  by  C  against  B, 
C  being  no  party  to  the  suit.  Under  ordinary  circumstances,  this 
would  undoubtedly  be  inadmissible;  but,  under  the  peculiar  cir- 
cumstances of  the  case  now  under  consideration,  it  seems  to  be 
open  to  no  objection.  A  cannot  object  because  the  payment  of 
C's  claim  is  a  necessary  condition  of  his  obtaining  the  relief  which 
he  seeks.  B  cannot  object,  as  he  is  in  no  way  prejudiced.  If  C's 
claim  be  not  well  founded,  he  will  have  a  full  opportunity  to  resist 
it ;  and  if  he  cannot  successfully  resist  it  in  A's  suit,  he  may,  as 
has  been  seen,  provided  he  can  raise  a  reasonable  doubt  of  its 
validity,  require  C  to  bring  an  action  against  him  to  establish  it. 
B  cannot  object  to  being  called  upon  to  pay  a  claim  of  C  in  a  suit 
brought  for  the  sole  purpose  of  compelling  payment  of  a  claim 
of  A,  for  he  has  nothing  to  do  with  paying  either.  He  pays  the 
money  into  court  in  any  event ;  and  he  has  no  concern  with  what 
afterwards  becomes  of  it. 

Can  C  complain  of  being  required  to  come  in  and  prove  his 
claim  in  A's  suit,  at  the  peril  of  the  estate's  being  administered 
without  regard  to  his  claim?  It  seems  not.  He  has  the  fullest 
facilities  for  establishing  his  claim,  even  to  the  extent  of  bringing 
an  action  for  that  purpose,  if  necessary.  It  is  true  that  the  estate 
iiiay  be  administered  without  his  knowledge ;  but  that  is  no  more 
than  might  happen  if  the  estate  were  administered  by  the  executor 
out  of  court.  The  administration  of  an  estate  cannot  be  delayed 
forever,  because  all  claims  against  it  may  not  have  been  brought 

1  Gillespie  v.  Alexander,  3  Russ.  130;  Greig  &.  Somerville,  i  R.  &  M.  33S.  Com- 
pare Davies  v.  Nicolson,  2  DeG.  &  J.  693. 

II 


1 62        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

in;  and  if  the  executor  wait  a  reasonable  length  of  time,  or  as 
long  as  the  law  requires  him  to  wait,  and  use  all  other  reasonable 
precautions,  or  all  such  as  the  law  requires,  and  then  proceeds  to 
distribute  the  estate,  no  claim  of  which  he  then  had  no  knowledge 
can  afterwards  be  enforced  against  him.^ 

Can  it  be  said  that  it  is  inconsistent  with  the  true  principles  of 
procedure,  and,  therefore,  injurious  to  the  public,  to  permit  a 
suit,  brought  by  A  against  B,  to  be  used  as  a  means  of  compelling 
payment  of  a  claim  of  C  against  B  ?  In  the  mode  and  under  the 
circumstances  now  supposed,  it  seems  not.  It  is  to  be  observed 
that  C's  claim  does  not  affect  the  suit  at  all  until  the  latter  gets 
into  the  Master's  office.  In  the  Master's  office  C's  claim  can  cause 
no  difficulty,  as  the  proceedings  there  are  independent  of  the  other 
proceedings  in  the  suit.  The  Master  simply  carries  out  the  direc- 
tions contained  in  the  decree,  and  such  directions  are  all  that  he 
need  know  of  the  suit.  Nor  is  the  reference  to  the  Master  caused 
by  C's  claim,  as  it  would  be  necessary  in  any  event.  Of  course 
C's  claim  will  cause  A  some  delay  in  the  Master's  office,  but,  for 
the  reason  before  stated,  A  cannot  complain  of  that  inconvenience. 
Will  C's  claim  cause  any  inconvenience  in  the  subsequent  pro- 
ceedings in  the  cause?  The  only  thing  that  will  remain  to  be 
done,  after  the  Master's  report  has  been  made  and  confirmed,  will 
be  for  the  court  to  make  its  final  decree.  Undoubtedly,  it  is  a 
cardinal  rule  that  the  relief  given  in  a  suit  must  be  confined  to  the 
parties  to  that  suit,  and  generally  it  must  be  confined  to  the  plain- 
tiff or  plaintiffs.  Moreover,  as  a  rule,  when  there  are  more  plain- 
tiffs than  one  in  a  suit,  they  must,  for  all  the  purposes  of  the  suit, 
constitute  a  unit,  as  a  court  of  equity  will  not  give  separate  and 
independent  relief  to  each  of  several  plaintiffs;  and  yet,  in  the 
case  now  supposed,  the  court  must,  by  its  final  decree,  give  sepa- 
rate and  independent  relief,  as  well  to  the  plaintiff  as  to  each  of 
the  persons  who  have  established  claims  before  the  Master.  The 
court  would,  therefore,  undoubtedly  encounter  very  serious  diffi- 
culties in  making  its  final  decree,  were  it  not  for  one  circumstance, 
namely,  the  payment  of  the  assets  into  court.  That,  however, 
removes  every  difficulty;  for,  in  consequence  of  it,  the  final  decree 
becomes  merely  the  direction  of  the  court  to  its  own  officer  as  to 

1  The  proposition  in  the  text  was  stated  on  the  authority  of  Chelsea  Water  Works 
Co.  V.  Cooper,  i  Esp.  275;  but  it  seems  that  it  cannot,  as  a  general  proposition,  be  sup- 
ported. See  2  Williams,  Executors  (8th  ed.)  1354;  supra,  ^.  158.  But  see  22  &  23 
Vict.,  c.  35,  s.  29. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         163 

the  disposition  of  the  money  in  court.  In  short,  the  case  becomes 
simply  one  of  paying  money  out  of  court. 

The  subject  may  be  looked  at  in  another  light.  Supposing  the 
suit  of  A  to  be  prosecuted  to  the  end  for  A's  sole  benefit,  what 
would  be  the  consequence }  Clearly,  the  estate  would  have  to  be 
administered  to  the  extent  of  having  it  all  converted  into  money, 
and  the  money  paid  into  court;  but  there  A's  relief  would  have 
to  stop  until  it  could  be  ascertained  what  claims  there  were  upon 
the  assets  superior  to  A's  claim.  How  would  this  be  done  ? 
One  way  would  be  for  A  to  present  a  petition  to  the  court,  en- 
titled in  the  cause  of  A  against  B,  asking  that  the  residue  of  the 
estate  be  ascertained  and  paid  over  to  him.  The  court  would 
then  make  an  order  of  reference  to  a  Master,  containing  directions 
precisely  like  those  contained  in  the  first  decree,  as  stated  above, 
except  that  the  Master  would  not  be  required  to  take  an  account 
of  the  estate,  that  having  been  already  done.  The  Master  having 
made  his  report,  and  his  report  having  been  confirmed,  the  court 
would  make  an  order  for  paying  the  money  out  of  court  in  pre- 
cisely the  same  terms  as  if  it  had  been  done  in  the  final  decree,  as 
before  stated.  Thus,  the  same  result  would  be  arrived  at  as  before, 
and  by  means  of  one  suit,  but  in  a  mode  much  less  direct  and 
much  more  dilatory  and  expensive. 

So  much  for  an  administration  bill  filed  by  a  residuary  legatee. 
If  the  bill  be  filed  by  the  next  of  kin,^  the  residue  not  having  been 
disposed  of  by  will,  the  suit  will  differ  in  only  one  material  point 
from  a  suit  by  a  residuary  legatee,  namely,  that  the  court  must  be 
satisfied  that  the  plaintiff  is  next  of  kin,  and  the  sole  next  of  kin 
to  the  deceased.  How  shall  the  court  be  satisfied  of  this?  The 
question  broadly  is,  Who  are  the  next  of  kin  of  the  deceased  ?  It 
is,  therefore,  like  the  question.  Who  are  the  creditors  of  the  de- 
ceased ?  In  the  former  case,  too,  as  well  as  in  the  latter,  the  court 
must  find  for  itself  the  answer  to  the  question,  as  there  will  be  no 
one  before  the  court  who  will  be  interested  in  furnishing  a  true 
answer,  or  upon  whom  the  consequences  of  an  erroneous  answer 
will  fall.  On  the  contrary,  those  consequences  will  fall  upon  per- 
sons not  before  the  court,  and  who,  therefore,  will  have  no  oppor- 
tunity to  be  heard.  Accordingly,  the  court  will  ascertain  who  are 
the  next  of  kin  of  the  deceased  in  the  same  manner  that  it  ascer- 

1  In  order  to  avoid  raising  questions  which  are  foreign  to  the  main  purposes  of  this 
article,  it  will  be  assumed  that  there  is  but  one  residuary  legatee,  and  but  one  next 
of  kin. 


1 64        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

tains  who  are  his  creditors,  namely,  by  referring  the  cause  to  a 
Master,  with  directions  to  him  to  publish  advertisements  for  the 
next  of  kin  of  the  deceased  to  come  before  him  within  a  time  to 
be  limited,  and  make  out  their  kindred,  the  court  declaring  that 
those  who  do  not  so  come  in  will  be  deprived  of  all  benefit  from 
the  decree.  When  shall  the  reference  for  this  purpose  be  made? 
One  might  suppose,  at  first  sight,  that  it  would  be  most  convenient 
to  embrace  in  one  reference  everything  that  is  to  be  done  by  the 
Master.  In  truth,  however,  the  question,  who  are  the  next  of  kin 
of  the  deceased,  is,  in  its  nature,  a  preliminary  question,  as  upon 
the  answer  to  it  will  depend  all  the  subsequent  proceedings  in  the 
cause.  It  has,  therefore,  been  found  convenient  to  make  the  in- 
quiry as  to  the  next  of  kin  the  subject  of  a  separate  and  prelimi- 
nary reference  ;  and  accordingly  the  first  decree  is  confined  to  that 
object.^  If  the  result  of  this  reference  is  against  the  plaintiff,  his 
bill  will  be  dismissed  ;  if  in  his  favor,  the  suit  will  proceed  in  the 
same  manner  as  a  suit  by  a  residuary  legatee.  Regularly,  there- 
fore, there  are  three  decrees  in  a  suit  by  a  next  of  kin,  while  there 
are  only  two  in  a  suit  by  a  residuary  legatee. 

If  the  bill  be  filed  by  a  pecuniary  legatee  for  the  recovery  of 
his  legacy,  a  somewhat  different  case  will  be  presented.  As  the 
claim  of  a  pecuniary  legatee  is  for  a  definite  sum  of  money,  and 
as  he  has  no  interest  in  the  estate  beyond  the  amount  of  his 
legacy,  he  will  not  be  entitled  to  an  account  of  assets,  if  the 
executor  will  admit  them  to  be  sufficient  to  pay  the  plaintiff's 
legacy ;  but  if  the  executor  will  not  admit  the  assets  to  be  sufficient 
for  that  purpose,  he  will  be  required  to  give  an  account;  and,  in 
that  event,  the  first  decree  will  be  the  same  as  upon  a  bill  by  a 
residuary  legatee,  i.e.,  the  Master  will  be  required  to  take  an 
account,  not  only  of  the  personal  estate  qf  the  testator,  but  also 
of  his  debts,  and  of  his  specific  and  pecuniary  legacies.  An 
account  of  the  debts  and  specific  legacies  will  be  required  for  the 
same  reason  as  upon  a  bill  by  a  residuary  legatee,  namely,  that 
debts  and  specific  legacies  have  a  priority  over  pecuniary  legacies. 
An  account  of  the  pecuniary  legacies  will  be  required  because  all 
such  legacies  are  payable  pro  rata,  and  no  one  pecuniary  legatee  is 
allowed  to  gain  a  priority  over  others  by  suing  for  his  legacy; 
and,  therefore,  the  court  must  have  an  account  of  the  pecuniary 
legacies,  as  well  as  of  the  personal  estate,  the  debts,  and  the  spe- 


1  See  Seton  on  Decrees  (ist  ed.)  72. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         165 

cific  legacies,  before  it  can  know  whether  or  not  the  pLiintiff's 
legacy  is  to  be  paid  in  full,  and,  if  not,  then  what  proportion  of 
it  is  to  be  paid. 

Not  only  will  the  first  decree  be  the  same,  in  the  case  now  sup- 
posed, as  upon  a  bill  by  a  residuary  legatee,  but  all  the  subsequent 
proceedings  will  be  the  same,  with  one  exception,  namely,  that, 
as  the  party  or  parties  entitled  to  the  residue  will  not  be  before  the 
court,  such  residue  will  remain  in  court  until  such  party  or  parties 
obtain  payment  of  it  by  a  petition  to  the  court  for  that  purpose.^ 
It  may  be  asked,  indeed,  how  it  is  that  the  residue  can  be  required 
to  be  paid  into  court,  as  the  parties  entitled  to  it  are  not  before 
the  court;  and  there  is  some  technical  difficulty  upon  that  point. 
Still,  as  the  decree  is  made  for  the  benefit  of  all  parties  interested 
in  the  estate,  except  those  entitled  to  the  residue,  and  as  the 
amount  of  the  residue,  if  any,  cannot  be  ascertained  until  the  end 
of  the  suit,  and  as  the  payment  of  the  whole  fund  into  court  must, 
in  legal  contemplation,  be  for  the  benefit  of  all  parties  interested 
in  it,  and  cannot  injure  the  executor,  the  technical  difficulty  has 
been  disregarded.^ 

It  must  be  observed,  however,  that  no  one  can  be  bound  by  an 
accounting  to  which  he  was  not  a  party,  and,  therefore,  in  the  case 
now  supposed,  the  party  or  parties  entitled  to  the  residue  may 
require  the  executor  to  account  over  again  upon  a  bill  filed  against 
him  for  that  purpose ;  but  of  course  it  will  be  at  the  peril  of  costs, 
if  they  harass  the  executor  with  a  second  accounting  without 
cause. 

If  the  executor  admit  that  he  has  sufficient  assets  to  pay  the 
plaintiff's  legacy  in  full,  the  plaintiff  will  be  entitled  to  no  account, 
as  he  will  need  none;  for  he  will  be  entitled  to  an  immediate 
decree  against  the  executor  personally  for  the  amount  of  his 
legacy.  But  it  should  be  carefully  observed  that  such  a  decree 
will  afford  the  executor  no  protection  against  either  a  creditor  or 
any  other  pecuniary  legatee ;  for  the  executor  had  no  right  to 
make  such  an  admission,  unless  he  had  sufficient  assets  not  only 
to  pay  all  debts,  but  also  to  pay  all  pecuniary  legacies  in  full. 
In  short,  an  admission  of  assets  by  an  executor,  upon  a  bill  by 
a  pecuniary  legatee,  means  that  the  assets  will  be  sufficient,  after 

1  The  question,  whether  a  bill  by  a  pecuniary  legatee  can  be  so  framed  as  to  enable 
the  court  to  pay  out  the  entire  assets  under  the  final  decree  in  the  suit,  will  be  considered 
further  on.     See  ittfra,  p.  iSo  et  seq. 

2  See  infra,  p.  180  et  seq. 


l66        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

payment  of  all  debts,  and  all  specific  legacies,  if  any,  to  pay  all 
pecuniary  legacies  in  full. 

It  will  be  seen,  therefore,  that,  upon  a  bill  by  a  pecuniary  legatee 
against  an  executor,  the  testator's  estate  will  or  will  not  be  ad- 
ministered, according  as  the  executor  is  or  is  not  required  to  give 
an  account;  and  that  he  will  be  required  to  give  an  account  unless 
he  admits  assets,  while  if  he  admits  assets,  he  will  not. 

We  now  come  to  the  case  of  a  bill  by  a  creditor  against  the 
executor  to  recover  his  debt;  and  the  question  is,  whether  such 
a  bill  can  be  so  moulded  as  to  serve  the  purpose  of  administering 
the  estate.  At  first  sight,  it  may  seem  that  such  a  bill  does  not 
differ  materially  from  a  bill  by  a  pecuniary  legatee  to  recover  his 
legacy.  In  truth,  however,  there  is  a  very  important  difference 
between  the  two,  —  a  difference,  too,  which  is  decisive  of  the 
present  question.^  All  pecuniary  legatees  must,  as  we  have  just 
seen,  be  paid  ratably,  and  no  one  of  them  can  gain  a  priority  over 
the  others  by  suing  for  his  legacy;  but  this  is  not  true  of  cred- 
itors, —  not  even  of  those  who  are  of  the  same  degree.  On  the 
contrary,  it  is  not  only  legally  possible  for  any  creditor  of  a 
deceased  debtor  to  gain  a  priority  by  superior  diligence  over 
every  other  creditor  of  the  same  degree,  but  such  is  the  inevitable 
consequence  of  any  creditor's  first  recovering  either  a  judgment 
at  law  or  a  decree  in  equity  for  his  debt.  That  such  is  the  law 
is  perfectly  well  known  ;  but  it  is  doubtful  if  the  reason  of  it  is 
very  well  understood.  In  particular,  it  is  believed  that  judgments 
against  an  executor  are  often  confounded  with  judgments  against 
his  testator.  It  is  true  that  a  judgment  of  either  class  gives  to 
the  person  who  recovers  it  a  right  to  priority  of  payment  by  the 
executor;  but  the  reason  is  entirely  different,  according  as  the 
judgment  belongs  to  the  one  class  or  the  other.  A  judgment 
against  a  living  debtor  gives  no  priority  to  the  creditor,  except  so 
far  as  the  judgment  is  a  lien  upon  the  debtor's  land ;  ^  but  the 
moment  the  debtor  dies,  his  judgment  creditors  are  entitled,  at 
common  law,  to  be  paid  out  of  his  personal  estate  in  priority  to 
other  creditors;  and  the  reason  is  that,  when  a  debtor  dies  the 
common  law  ranks  his  creditors  according  to  the  nature  of  their 


1  I.e.,  assuming  that  the  bill  is  solely  for  the  recovery  of  the  plaintiff's  debt.  See 
infra,  pp.  168-69. 

2  If  an  execution  is  issued  on  the  judgment,  the  creditor  may  also  acquire  a  lien  on 
personal  property  of  the  debtor,  but  not  otherwise.  See  Finch  v.  Winchelsea,  3  P. 
Wms.  399,  note.     See  also  i  Archbold's  Practice  (13th  ed.)  522. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 67 

debts,  debts  created  by  matter  of  record  being  the  highest,  and 
simple  contract  debts  being  the  lowest.  Judgment  creditors,  there- 
fore, of  a  deceased  debtor  have  a  priority,  not  because  they  have 
obtained  judgments  for  their  debts,  but  because  their  debts  are 
debts  of  record.  The  ranking  of  the  creditors  of  a  deceased 
debtor  depends,  however,  entirely  upon  the  nature  of  their  debts  at 
the  moment  of  their  debtor's  death.  Indeed,  their  nature  cannot 
afterwards  be  changed  without  a  destruction  of  them ;  and  if, 
therefore,  the  executor  of  a  deceased  debtor  converts  a  debt  due 
by  the  latter  into  a  debt  of  a  higher  nature,  he  thereby  destroys 
it,  and  the  new  debt  becomes  his  own. 

How  is  it,  then,  that  a  judgment  against  an  executor  always 
gives  the  creditor  a  priority?  The  answer  has  just  been  suggested, 
namely,  the  judgment  binds  the  executor  personally.  Moreover, 
an  executor  cannot  prevent  the  recovery  of  a  judgment  against 
him,  if  he  has  sufficient  assets  to  pay  the  debt,  after  paying  debts 
of  a  higher  nature;  and,  as  the  law  compels  him  to  pay  a  judg- 
ment so  recovered,  even  if  he  pays  it  out  of  his  own  pocket,  of 
course  it  must  protect  him,  to  that  extent,  against  the  claim  of  any 
other  creditor,  the  existence  of  whose  debt  would  not  have  pre- 
vented the  recovery  of  the  judgment,  i.e.,  against  the  claim  of 
every  other  creditor  whose  debt,  before  the  recovery  of  the  judg- 
ment, was  not  of  a  higher  nature  than  that  of  the  judgment 
creditor.  It  is  true  that,  in  form,  a  judgment  against  an  executor 
is  commonly,  in  the  first  instance,  de  bonis  testatoris,  —  not  de 
bonis  propriis  ;  but,  as  every  judgment  against  an  executor  de  bonis 
testatoris  is  conclusive  proof  that  the  executor  has  sufficient  goods 
of  the  testator  to  satisfy  the  judgment,  the  judgment  is  in  effect  de 
bonis  propriis} 

The  effect  of  a  decree  in  equity  against  an  executor,  at  the  suit 
of  a  creditor  of  his  testator,  in  giving  the  creditor  a  priority,  is 
even  more  decisive  than  that  of  a  judgment  at  law ;  for  a  decree  in 
equity  binds  the  executor  personally  in  form  as  well  as  in  effect. 
The  executor,  as  in  the  case  of  a  bill  by  a  pecuniary  legatee,  is 
required  either  to  admit  assets  or  to  give  an  account.  If  he 
admit  assets  (and  an  admission  of  assets  in  this  case  means  only 
that  he  has  sufficient  assets  to  pay  the  plaintiff,  after  paying  all 

1  What  is  said  in  the  text  suggests  another  important  distinction  between  judgments 
against  an  executor  and  judgments  against  his  testator,  namely,  that  the  former  have 
priority  according  to  their  respective  dates,  while  the  latter  all  stand  upon  the  same 
footing. 


1 68        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

debts  of  a  higher  nature),  the  creditor  will  be  entitled  to  an 
immediate  decree  against  the  executor  personally.  If  the 
executor  decline  to  admit  assets,  he  will  be  required  to  give  an 
account;  but  the  account  will  be  exclusively  for  the  plaintiff's 
benefit,  its  object  being  merely  to  enable  him  to  show  that  there 
are  sufficient  assets  to  pay  him,  after  paying  all  debts  of  a  higher 
nature.  If  the  plaintiff  succeed  in  showing  this,  he  will  be  en- 
titled, as  before,  to  a  decree  against  the  executor  personally. 
Indeed,  equity  was  bound  in  self-defence  to  make  its  decrees 
against  executors  binding  on  them  personally;  for  otherwise  such 
decrees  would  have  had  no  other  effect  than  to  prove  the  existence 
of  the  debt  (as  to  which  there  is  commonly  no  question),  and 
hence  creditors  who  sued  in  equity  would  have  been  put  at  a  great 
disadvantage  as  compared  with  creditors  who  sued  at  law. 

It  may  be  thought  that,  upon  a  bill  by  a  creditor,  if  the 
executor  does  not  admit  assets,  there  ought  to  be  an  account  of  all 
debts  of  a  higher  nature  than  the  plaintiff's,  and  that  the  pay- 
ment of  all  such  debts  ought  to  be  provided  for  in  priority  to  the 
plaintiff's ;  and  equity  might,  indeed,  have  taken  that  course,  but 
in  fact  it  has  not.  On  the  contrary,  equity  has  in  that  respect 
followed  the  analogy  of  an  action  at  law,  treating  all  debts  of 
a  higher  nature  as  if  they  had  in  fact  been  paid,  and  so  permitting 
the  executor  to  show  them  in  his  account  as  items  of  discharge.^ 
One  reason  for  this  may  have  been  that  equity  did  not  think  it 
worth  its  while  to  go  out  of  its  way  to  provide  for  the  payment  of 
a  part  only  of  the  debts.  Another  reason  may  have  been  that 
equity  regards  the  claims  of  all  creditors  as  equal  in  point  of 
justice,  and  therefore  it  was  not  disposed  to  go  out  of  its  way  to 
assist  one  class  of  creditors,  upon  the  ground  that  they  had  a 
priority  over  other  creditors. 

It  follows,  therefore,  that  a  bill  by  a  creditor  to  recover  his  own 
debt  never  involved  providing  for  the  payment  of  (and  therefore 
never  involved  taking  an  account  of)  any  other  debts;  and  a 
creditor  who  filed  such  a  bill  had  a  right  to  insist  that  his  suit 
should  not  be  incumbered  or  delayed  by  the  claims  of  any  other 
creditors  with  which  he  had  nothing  to  do ;  and  for  the  court  to 
have  made  such  a  suit  the  means  of  providing  for  the  claims  of 
other  creditors,  without  the  plaintiff's  consent,  would  have  been 
an  act  wholly  arbitrary,  and  in   plain  violation    of  the   plaintiff's 

1  See  Anon.,  3  Atk.  572. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         169 

rights.  Nor  would  it  probably  have  been  thought  a  boon  to  the 
body  of  the  creditors  of  the  testator  to  be  permitted  to  come  in 
and  prove  their  debts  under  a  decree  obtained  by  one  of  such 
creditors,  if  that  one  creditor  must  be  paid  in  full  before  the  others 
were  provided  for  at  all. 

The  conclusion,  therefore,  is  that,  upon  a  creditor's  bill  against 
an  executor,  the  estate  of  the  testator  can  never  be  administered 
without  the  plaintiff's  consent.  With  his  consent,  however,  it 
clearly  may  be  done ;  for  his  rights  are  the  only  obstacle  which 
stands  in  the  way.  If,  therefore,  a  creditor  files  a  bill,  expressly 
disclaiming  any  priority  over  other  creditors  of  the  same  degree, 
and  praying  that  payment  of  all  the  debts  may  be  provided  for, 
according  to  their  legal  priorities  at  the  time  of  the  testator's 
death,  there  is  every  reason  why  the  prayer  of  the  bill  should  be 
granted  ;  for  it  enables  the  court  to  administer  the  estate,  and  it  is 
also  promotive  of  one  of  the  most  cherished  objects  of  equity, 
namely,  equality  among  creditors.  Moreover,  this  is  precisely 
what  takes  place  in  the  common  case  where  a  creditor  files  a  bill 
against  an  executor,  "  on  behalf  of  himself  and  of  all  the  other 
creditors  of  the  testator,"  the  words  quoted  being  held  (and 
properly  held)  to  mean  all  that  is  stated  above.  Accordingly, 
upon  such  a  bill,  the  first  decree  will  direct  an  account  of  the  estate 
and  of  all  the  debts  of  the  testator,  and  when  the  account  has 
been  taken,  payment  into  court  of  the  balance  in  the  executor's 
hands  will  be  directed,  as  upon  a  bill  by  a  residuary  legatee,  and 
the  court  will  proceed  in  all  particulars  as  upon  a  bill  by  a  residu- 
ary legatee,  except  that  no  account  of  legacies  will  be  taken,  nor 
any  payment  of  them  provided  for ;  but  the  residue  of  the  personal 
estate,  after  payment  of  the  debts,  will  remain  in  court  until  paid 
out  on  the  application  of  those  entitled  to  it.-' 

The  words  which  have  been  quoted  in  the  last  paragraph  have 
an  effect  even  beyond  what  has  been  stated ;  for  they  convert  the 
bill  from  a  bill  seeking  a  personal  decree  against  the  executor  into 
a  bill  merely  for  the  administration  of  a  fund.  It  is  clearly  impos- 
sible upon  such  a  bill  for  any  one  but  the  plaintiff  to  have  a  per- 
sonal decree  against  the  executor;  and  it  is  as  clearly  impossible 
to  give  the  plaintiff  any  relief  which  cannot  also  be  given  to  all 
the  other  creditors.  Accordingly,  upon  a  creditor's  bill,  filed  on 
behalf  of  the  plaintiff  and  all  the  other  creditors  of  the  testator, 

1  See  Collinson  v.  Ballard,  2  Hare,  119. 


i;o        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

no  personal  decree  is  ever  made  against  the  executor;  nor, 
indeed,  is  any  final  decree  whatever  made  against  him,  the  estate 
being  fully  administered  as  to  him  when  it  has  been  converted 
into  money,  and  the  money  paid  into  court.  Moreover,  as  the  bill 
seeks,  not  a  personal  decree,  but  the  administration  of  a  fund, 
there  is  no  propriety  in  the  executor's  admitting  assets  (the  only 
object  of  which  is  to  lay  the  foundation  for  a  personal  decree); 
and  still  less  will  an  admission  of  assets  by  the  executor  exempt 
him  from  giving  an  account.  He  is  not,  therefore,  given  the 
option  of  accounting  or  admitting  assets,  but  he  is  required  to 
account  unconditionally.^ 

Of  course  the  technical  objection  to  requiring  an  executor  to 
pay  all  the  money  in  his  hands  into  court,  upon  a  bill  by  a  pecun- 
iary legatee,  holds  still  more  strongly  in  the  case  of  a  bill  by  a 
creditor  on  behalf  of  himself  and  all  the  other  creditors;  but  it 
has  been  disregarded  in  the  latter  case  as  well  as  in  the  former.^ 
As  a  creditor  may  file  a  bill  on  behalf  of  himself  and  all  the 
other  creditors,  so  a  pecuniary  legatee  may  file  a  .bill  on  behalf  of 
himself  and  all  other  pecuniary  legatees.  As,  however,  a  bill  by 
a  pecuniary  legatee  involves  the  administration  of  the  estate 
equally,  whether  it  be  filed  for  the  plaintiff's  exclusive  benefit,  or 
"  on  behalf  of  the  plaintiff  and  all  the  other  pecuniary  legatees," 
unless,  in  the  former  case,  the  executor  admits  assets,  the  only 
effect  of  the  words  quoted  is  to  convert  the  bill  from  a  bill  seeking 
a  personal  decree  against  the  executor  into  a  bill  for  the  adminis- 
tration of  the  fund,  and  thus  to  require  the  executor  to  account 
absolutely,  instead  of  giving  him  the  option  of  admitting  assets  or 
accounting. 

The  next  question  is.  How  could  creditors  be  induced  to  share 
equally  with  other  creditors  the  fruits  of  a  suit  prosecuted  by 
themselves  alone  ?  That  they  were  so  induced  is  clear;  for  bills 
by  creditors,  except  on  behalf  of  themselves  and  all  other  cred- 
itors, are,  and  have  long  been,  very  uncommon.  Undoubtedly, 
equity  might  originally  have  made  it  a  condition  of  its  entertaining 

1  It  follows,  therefore,  that  a  creditor  should  never  leave  it  in  doubt  whether  his  bill 
is  for  his  own  exclusive  benefit,  or  on  behalf  of  himself  and  other  creditors.  See  Reeve 
V.  Goodwin,  lo  Jur.  1050.  In  Woodgate  v.  Field,  2  Hare,  211,  where  the  bill  was  by  a 
creditor,  on  behalf  of  himself  and  other  creditors,  there  was  not  only  an  admission  of  as- 
sets in  the  defendant's  answer,  but,  on  that  admission,  the  plaintiff  was  permitted  at 
the  hearing  to  take  a  personal  decree  against  the  defendant.  It  seems,  however, 
impossible  to  support  the  decision. 

2  See  iiifru,  p.  iSo  et  seq. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         171 

a  suit  by  a  creditor,  tliat  other  creditors  should  be  permitted  to 
share  in  its  benefits ;  for  equity  may  always  dictate  the  terms  on 
which  it  will  give  to  the  owners  of  legal  rights  the  benefit  of  equi- 
table remedies.  Perhaps,  however,  the  absolute  right  of  a  creditor 
to  sue  in  equity  was  too  well  established  to  be  drawn  in  question 
before  it  was  perceived  that  such  a  condition  was  desirable. 
Perhaps,  also,  the  imposing  of  such  a  condition,  while  the  jurisdic- 
tion was  new,  would  have  had  little  other  effect  than  to  discourage 
creditors  from  coming  into  equity.  At  all  events,  equity  never 
imposed  any  such  condition ;  ^  and  at  length  it  became  too  late  to 
do  so.  It  became  necessary,  therefore,  to  find  some  other  means 
of  accomplishing  the  same  object;  and  other  effective  means  were 
at  length  found. 

Of  course  the  fact  that  one  creditor  of  a  testator  sues  the  execu- 
tor of  the  latter,  does  not  prevent  any  other  creditor  from  suing 
him  also  ;  and  the  fact  that  one  creditor  sues  him  for  his  own  ex- 
clusive benefit  does  not  prevent  another  creditor  from  suing  him 
on  behalf  of  all  the  creditors.  Moreover,  if  one  creditor  file  a  bill 
for  his  own  exclusive  benefit,  and  then  another  creditor  file  a  bill  on 
behalf  of  all  the  creditors,  and  the  creditor  in  the  second  suit  obtain 
a  decree  for  an  accounting  before  the  creditor  in  the  first  suit  obtains 
a  personal  decree  against  the  executor,  the  proceedings  in  the  first 
suit  will  be  stayed,  and  the  creditor  in  that  suit  will  have  to  come  in 
and  prove  his  debt  under  the  decree  in  the  second  suit;  for  it  is  a 
rule,  the  reason  of  which  will  be  considered  presently,  that,  after  a 
decree  is  made  under  which  an  estate  can  be  administered,  no  one 
who  is  entitled  to  come  in  under  that  decree  will  be  permitted  to 
prosecute  any  suit  for  his  own  exclusive  benefit.  Moreover,  ex- 
ecutors were  encouraged  to  cooperate  with  any  creditor  who  sued 
on  behalf  of  all  the  creditors,  and  thus  enable  him  to  obtain  a 
decree  before  any  creditor  who  sued  for  his  own  exclusive  benefit 
could  gain  a  right  to  a  priority  of  payment;  and  this  was  finally 
carried  to  such  a  length  that  an  executor  was  permitted  to  com- 
mit the  absurdity  of  suing  himself,  i.e.,  of  filing  a  bill  against 
himself  in  the  name  of  a  creditor  (whose  consent,  of  course,  he 
must  obtain),  the  same  attorney  confessedly  acting  for  both  plain- 
tiff and  defendant.^  If,  however,  it  was  suspected  that  an  executor 
was   using    this  privilege  as  a  means  of   delaying    creditors    and 

^  See  infra,  p.  1S5,  n.  i. 

2  Paxton  V.  Douglas,  8  Ves.  520,  t^22,  per  Lord  Eldon ;  Gilpin  v.  Lady  Southamp- 
ton, 18  Ves.  469-470, /c-r  Lord  Eldon. 


172        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

keeping  the  money  in  his  own  hands,  it  was  open  to  any  creditor 
to  make  an  application  to  the  court  to  have  the  prosecution  of  the 
suit  committed  to  himself  or  to  some  other  creditor,  and  such  an 
application  was  always  listened  to  with  favor. ^ 

An  executor,  however,  who  honestly  desired  to  prevent  any  one 
creditor  from  gaining  a  priority  over  others  by  obtaining  a  per- 
sonal decree  against  himself,  could  easily  do  so  in  the  manner 
pointed  out  in  the  last  paragraph ;  ^  and,  therefore,  a  creditor  who 
sued  an  executor  for  his  own  exclusive  benefit  was  confronted  with 
the  moral  certainty,  not  only  of  failing  in  his  object,  but  also  of 
losing  the  benefit  of  conducting  a  suit  for  the  administration  of  the 
estate.  It  is  not  surprising,  therefore,  that  bills  for  the  exclusive 
benefit  of  the  creditor  who  filed  them  were  superseded  by  bills  for 
the  equal  benefit  of  all  the  creditors. 

It  must  not,  however,  be  supposed  that  all  the  obstacles  which 
equity  encountered  in  its  attempts  to  administer  the  estates  of 
deceased  persons  had  yet  been  overcome.  It  had,  indeed,  been 
shown  that  suits  by  creditors  of  a  testator  could  be  so  framed  as 
to  serve  the  purpose  of  administering  the  testator's  estate,  and 
means  had  been  found  of  compelling  creditors  so  to  frame  their 
suits ;  and,  incidentally,  means  had-  been  found  of  defeating  the 
attempts  of  particular  creditors,  by  suits  in  equity  for  their  own 
exclusive  benefit,  to  gain  priority  over  other  creditors  of  the  same 
degree.  But  it  was  still  possible  for  one  creditor  to  gain  priority 
over  others  by  obtaining  a  judgment  at  law  against  the  executor; 
and,  unless  some  means  could  be  found  of  preventing  that,  no 
creditor  would  find  it  worth  his  while  to  file  a  bill  in  equity  on 
behalf  of  himself  and  all  the  other  creditors  for  the  administra- 
tion of  the  estate,  and  every  insolvent  estate  of  a  deceased  debtor 
would  be  exhausted  in  a  ruinous  struggle  among  the  creditors  for 
priority,  or  at  best  every  executor  whose  testator's  estate  was 
insolvent  would  be  forced  to  give  a  preference  to  those  creditors 
whom  he  most  favored  by  either  paying  them  in  full  (so  long  as 
he  had  assets   for  the  purpose),  or  by  confessing  judgments   in 

1  Paxton  V.  Douglas,  8  Ves.  520,  521-2,  per  Lord  Eldon ;  Sims  i'.  Ridge,  3  Mer. 
45S;  Powell  V.  Wallwonh,  2  Madd.  183;  Hawkes  v.  Barrett,  5  Madd.  17.  See  also 
Spode  V.  Smith,  3  Russ.  511. 

2  In  Hayward  v.  Constable,  2  Y.  &  Coll.  43,  it  appeared  that  an  administration  bill 
was  filed  Feb.  8,  that  the  executor's  answer  was  filed  Feb.  !i,  and  a  decree  made 
Feb.  12.  In  Hawkes  v.  Barrett,  5  Madd.  17,  a  bill  was  filed  Dec.  15,  the  executors 
answered  immediately,  and  a  decree  was  made  Dec.  22.  One  of  the  executors  also  was 
solicitor  for  both  plaintiff  and  defendants,  and  the  other  executor  was  residuary  legatee. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 73 

their  favor.  In  short,  it  was  in  vain  for  equity  to  prevent  any  one 
creditor  from  gaining  a  priority  over  the  others  in  equity,  unless 
he  could  also  be  prevented  from  doing  the  same  thing  at  law. 
Could  a  creditor  be  so  prevented?  Clearly,  only  in  one  way, 
namely,  by  an  injunction.  Could,  then,  any  principle  be  found 
upon  which  an  injunction  could  be  granted  against  a  creditor  who 
was  seeking  to  recover  his  debt  by  an  action  at  law?  An  injunc- 
tion was  granted  in  such  a  case  for  the  first  time  in  Morrice  v. 
The  Bank  of  England ;  ^  but  it  was  upon  a  ground  so  special  and 
so  narrow  that  the  decision  left  the  jurisdiction  of  equity  over  the 
estates  of  deceased  persons  about  where  it  found  it.  An  execu- 
trix was  there  sued  at  law  by  many  creditors  of  her  testator  after 
certain  other  creditors  (whose  debts  were  due  only  in  equity)  had 
obtained  decrees  against  her  in  equity,  in  suits  prosecuted  for 
their  own  exclusive  benefit;  and,  on  a  bill  filed  by  her,  an  injunc- 
tion was  granted  against  the  prosecution  of  the  actions  at  law; 
but  it  was  only  upon  the  ground  that  the  executrix  was  there 
placed  between  two  fires.  On  the  one  hand  no  judgments  which 
could  be  recovered  against  the  executrix  would  protect  her 
against  the  decrees,  because  the  latter  were  made  first,  and  equity 
could  not  possibly  permit  its  decrees  to  be  disobeyed  because  of 
what  some  other  court  had  done  since  those  decrees  were  made.^ 


1  Cas.  t.  Talbot,  217,  3  Swanst.  573,  2  Bro.  P.  C.  (Toml.  ed.)  465. 

2  Morrice  v.  Bank  of  England  was  decided  successively  in  the  plaintiff's  favor  by  Sir 
Joseph  Jekyll,  M.  R.  (before  whom  it  was  argued  for  six  days),  l)y  Lord  Chancellor 
Talbot  (before  whom  it  was  argued  for  seven  days),  and  by  the  House  of  Lords  (before 
which  it  was  argued  for  six  days) ;  and  it  may,  therefore,  be  thought  presumptuous  to 
criticise  the  decision.  The  writer  has,  however,  found  himself  wholly  unable  to  support 
it.  The  difficulty  is,  that  the  facts  do  not  bring  the  case  within  the  reasons  given  for  the 
decision,  — a  difficulty  which  does  not  appear  to  have  been  at  all  adverted  to,  either  by 
counsel  or  by  courts.  The  decrees  did  not  bind  the  executrix  personally,  and  were 
not  intended  to  do  so.  A  personal  decree  against  an  executor  must  be  based  either  upon 
an  admission  of  assets  by  him,  or  upon  an  accounting  which  shows  the  amount  of  assets 
in  his  hands ;  but  in  Morrice  v.  Bank  of  England  the  executrix  had  neither  admitted 
assets  nor  accounted.  In  her  answer  she  had  expressly  declined  to  admit  assets ;  and, 
though  an  account  of  the  personal  estate  was  directed  by  the  decree,  it  had  not  yet  been 
taken.  If,  therefore,  the  decrees  had  been  so  framed  as  to  bind  the  executrix  personally, 
they  would  not  have  been  final  (and,  therefore,  would  not  have  bound  her  personally) 
until  the  account  was  taken,  as  it  would  not  be  known  till  then  for  what  amount  the 
e.xecutrix  would  be  bound.  The  decrees  were  not,  however,  so  framed.  On  the  con- 
trary, they  simply  directed  the  e.xecutrix  to  pay  the  plaintiff's  claims  out  of  the  assets  in 
her  hands,  and  in  a  due  course  of  administration.  Although,  therefore,  the  decrees  were 
final,  they  did  not  bind  the  executrix  personally.  In  truth,  they  had  no  other  effect  than 
to  establish  the  plaintiffs  claims  and  fix  their  amount.  The  plaintiffs  seem  to  have  sup- 
posed that  any  final  decree  would  give  them  a  priority,  thus  confounding  judgments  and 


174        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOIV. 

On  the  other  hand,  the  decrees  would  be  no  protection  to  the 
executrix  at  law,  because,  in  the  judgment  of  a  court  of  law,  a 
decree  in  equity  is  nothing.  In  short,  equity  must  insist  upon 
obedience  to  its  decrees;  and,  therefore,  as  the  executrix  could 
not  render  such  obedience  without  incurring  liability  at  law,  equity 
must  protect  her  against  such  liability.  The  decision,  however, 
did  not  warrant  an  injunction  until  a  creditor  had  obtained  a  per- 
sonal decree  against  the  executor  in  equity,  and,  therefore,  not 
until  a  creditor  had  accomplished  in  equity  the  very  purpose 
which  it  was  the  object  of  an  injunction  to  prevent  a  creditor's 
accomplishing  at  law;  and  that  is  the  reason  why  the  decision 
exerted  so    little    influence  oyer  the  administration    of  assets    in 

equity. 

It  was  not,  however,  the  fault  of  the  court  that  the  decision  in 
Morrice  v.  The  Bank  of  England  was  placed  upon  so  narrow  a 
ground;  for  it  has  never  been  claimed  that  a  suit  in  equity  by  a 
creditor,  prosecuted  for  the  plaintiff's  exclusive  benefit,  could 
furnish  any  broader  ground  for  an  injunction.  It  is  otherwise, 
however,  of  a  suit  in  equity  which  is  so  framed  that  it  will  result  in 
the  administration  of  the  entire  estate;  for  the  first  decree  in  such 
a  suit  is  in  effect  a  declaration  that  the  court  takes  possession  of 
the  entire  estate  for  the  purpose  of  administering  it;  and,  there- 
fore, no  other  court  can  be  permitted  to  enforce  any  claim  against 
it.  The  moment  that  such  a  decree  is  made,  the  executor  becomes 
amenable  to  the  court  which  makes  the  decree,  in  respect  to  all 
his  official  acts;  and  hence  that  court  will  not  thereafter  permit 
any  of  the  executor's  official  acts  to  be  either  directed  or  ques- 
tioned by  any  other  court.  Such  a  decree  has  in  fact  the  same 
effect,  in  giving  the  court  exclusive  jurisdiction  over  the  estate,  that 
the  appointment  of  a  receiver  would  have.     It  does  not,  indeed, 

decrees  against  executors  with  judgments  and  decrees  against  living  debtors.  Tlie 
latter,  of  course,  always  bind  the  defendant  personally  ;  and,  therefore,  all  that  is  neces- 
sary to  give  them  full  and  complete  effect  is  that  they  be  final.  Smith  v.  Haskins  Stiles 
Eyles,  2  Atk.  385.  But,  as  to  judgments  and  decrees  against  executors,  the  question  is 
not  whether  they  are  final  (though  they  must  indeed  be  final),  but  whether  they  require 
the  executor  to  pay  absolutely  or  only  out  of  assets.  The  case  of  Abbis  v.  Winter,  3 
Swanst.  578,  note,  seems  to  show  that  the  reason  why  a  judgment  or  decree  against  an 
executor  gives  priority  to  the  creditor  who  obtains  it  was  not  very  well  understood  at  the 
time  when  Morrice  v.  Bank  of  England  was  decided.  In  Smith  v.  Birch,  3  Beav.  10,  the 
decree  was  neither  binding  on  the  executor  personally,  nor  final.  See  also  Ashley  v. 
Pocock,  3  Atk.  208;  Gaunt  v.  Taylor,  3  M.  &  Gr.  886;  Uollondz/.  Johnson,  2  Sm.  & 
Giff.  301  ;  Jennings  v.  Rigby,  33  Beav.  198;  Williams  v.  Williams,  L.  R.  15  Eq.  270; 
Hanson  v.  Stubbs,  8  Ch.  D.  154. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 75 

and  cannot,  convert  the  executor  into  a  receiver.  The  executor's 
legal  rights  and  legal  duties  remain  unchanged,  and  the  exercise  of 
the  one  and  the  performance  of  the  other  are  interfered  with  only 
so  far  as  the  purposes  of  justice  require.  Accordingly,  the  execu- 
tor is  left  for  the  most  part  to  convert  the  estate  into  money, 
without  interference ;  but  when  the  estate  has  been  converted  into 
money,  the  court  reserves  to  itself  the  disposition  of  that  money, 
and,  therefore,  the  executor  is  required,  as  has  been  seen,  to  pay  it 
into  court,  and  if  he  pays  any  of  it  out  in  the  discharge  of  the 
testator's  debts  or  legacies,  he  will  do  so  at  his  peril,  as  the  court 
will  give  him  no  other  protection  than  to  permit  him  to  stand  in 
the  place  of  those  whom  he  has  paid.^ 

The  conclusion  therefore  is,  that  as  soon  as  a  decree  is  made 
against  an  executor,  under  which  the  entire  estate  of  his  testator 
will  be  administered,  or  (in  other  words)  under  which  the  executor 
will  be  required  to  pay  the  proceeds  of  the  whole  estate  into  court, 
an  injunction  ought  to  be  granted  against  the  enforcement  of  any 
claim  against  the  estate  by  an  action  at  law;  and  accordingly  such 
has  been  the  established  rule  for  more  than  a  hundred  years.  An 
injunction  was  granted,  under  such  circumstances,  for  the  first  time, 
by  Lord  Camden,  in  1767,  in  the  case  of  Douglas  v.  Clay;^  but 
the  reasons  of  the  decision  have  not  been  reported,  and  the  injunc- 
tion may  have  been  granted  on  a  special  ground ;  for  the  executor 
was  there  sued  at  law  by  the  very  persons  who  had  obtained  the 
decree  in  equity  against  him,  and  who  may,  therefore,  have  been 
held  to  have  made  their  election  between  law  and  equity.  The 
first  injunction  that  was  granted  expressly  upon  the  ground  above 
explained  was  that  granted  by  Lord  Thurlow,  in  1782,  in  the  case 
of  Brooks  f.  Reynolds;  3  and  though  it  is  doubtful  whether  that 


1  Jones  V.  Jukes,  2  Ves.  Jun.  51S;  Mitchelson  v.  Piper,  8  Sim.  64;  Irby  v.  Irby,  24 
Beav.  525. 

2  Cited  in  Brooks  v.  Reynolds,  i  Bro.  C.  C.  1S3,  1S4;  s.  c.  Dick.  393. 

8  I  Bro.  C.  C.  183,  Dick.  603.  That  was  a  bill  by  an  executrix  to  restrain  a  cred- 
itor of  her  testator  from  suing  her  at  law.  An  administration  decree  had  been  made 
against  the  executrix,  upon  a  bill  filed  by  trustees  under  the  testator's  will.  Possibly 
the  decree  was  right,  as  the  trustees  were  residuary  legatees ;  and  Lord  Eldon  (in  Perry 
V.  Phelips,  10  Ves.  34,  39)  speaks  of  the  bill  as  having  been  filed  by  residuary  legatees. 
Still,  the  trustees  filed  the  bill  professedly  to  obtain  the  directions  and  indemnity  of  ths 
court  in  executing  the  trust,  and  all  the  cestui  que  trusts  under  the  will,  as  well  as  the 
executrix  and  the  testator's  heir  at  law,  were  made  defendants ;  and,  therefore,  the  bill 
seems  to  have  been  in  the  nature  of  a  bill  of  interpleader.  Dickens  says  (doubtless  by 
mistake)  the  bill  was  filed  by  a  creditor  on  behalf  of  himself  and  the  other  creditors. 

It  may  be  further  observed  that  the  plaintiff's  object  in  seeking  an  injunction  con- 


176        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

was  a  case  in  which  the  estate  could  properly  be  administered, 
yet  a  decree  for  the  administration  of  the  estate  had  in  fact  been 
made,  and  the  correctness  of  that  decree  could  not  of  course  be 
questioned  in  a  collateral  proceeding.  The  decision  in  Brooks  v. 
Reynolds  was  not,  however,  sufficient  to  settle  the  question;  for 
in  the  subsequent  case  of  Kenyon  v.  Worthington,^  in  which  the 
question  arose  nakedly  and  upon  its  merits,  an  application  to  Lord 
Thurlow  for  an  injunction  was  resisted  by  counsel  of  the  greatest 
eminence.  The  resistance,  however,  was  unsuccessful,  and  the 
injunction  was  granted.  This  was  in  1786;  and  from  that  time 
the  question  was  regarded  as  settled.^ 

The  practice  thus  established  involved  from  the  beginning  one 
danger  (already  adverted  to  in  another  connection),  namely, 
that  executors  would  sometimes  make  it  a  means  of  delaying 
creditors,  and  of  keeping  the  assets  in  their  own  hands.  This 
danger  was,  however,  effectively  guarded  agaiinst  by  making  it  a 
condition  of  granting  an  injunction,  that  the  executor  make  an 
affidavit  as  to  the  state  of  the  assets,  and  pay  into  court  whatever 
money  was  then  in  his  hands.^ 

There  was  also  a  serious  objection,  in  point  of  procedure,  to  the 
practice  established  by  Lord  Thurlow,  namely,  that  it  was  expen- 
sive and  cumbersome ;  for  it  made  it  necessary  for  every  executor 
against  whom  an  administration  decree  was  obtained,  as  often  as 
he  was  sued  at  law  by  any  creditor  of  his  testator,  to  file  a  bill 
against  such  creditor  (z.^.,  commence  and  prosecute  a  suit  against 
him)  for  the  sole  purpose  of  obtaining  an  injunction;  and  the 
fact  that  administration  suits  were  so  very  numerous  made  this 
objection  all  the  more  serious.  Still,  it  was  an  objection  which 
courts  of  equity  could  not  themselves  remove  without  introducing 
arbitrarily  a  great  anomaly  in  procedure;  and  it  was,  therefore,  a 
proper  case  for  legislation.  It  was  not  easy,  however,  a  hundred 
years  ago,  to  obtain  legislation  in  England  for  such  a  purpose; 
and,  therefore,  the  question  was,  whether  a  serious  practical  incon- 
venience should  be  submitted  to,  or  whether  principle  should  be 

fessedly  was,  not  to  prevent  the  defendant  from  obtaining  a  preference  over  other  cred- 
itors (for  the  estate  was  admitted  to  be  solvent),  but  to  protect  against  creditors  a  large 
amount  of  property  specifically  bequeathed  to  the  plaintiff  herself. 

1  Dick.  668. 

2  Paxton  V.  Douglas,  8  Ves.  520;  Perry  v.  Phelips,  10  Ves.  34;  Curre  v.  Bowyer, 
3  Madd.  456;  Clarke  v.  Earl  of  Ormonde,  Jac.  108,  123-25. 

2  Cleverley  v.  Cleverley,  cited  8  Ves.  521 ;  Paxton  v.  Douglas,  8  Ves.  520;  Gilpin  v. 
Lady  Southampton,  18  Ves.  469;  Clarke  v.  Earl  of  Ormonde,  Jac.  108,  125. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 7/ 

sacrificed;  and  the  latter  alternative  was  the  one  adopted.  In  the 
time  of  Lord  Loughborough,  the  practice  began  of  granting  the 
injunction,  without  recjuiring  any  bill  to  be  filed,  i.e.,  \.\\)(n\  a 
motion  made  by  the  executor  in  the  administration  suit;'  and 
this  was  in  effect,  not  only  giving  relief  upon  motion,  but  it  was 
giving  relief  upon  a  motion  made  in  a  suit  in  which  such  relief 
could  not  possibly  have  been  given  by  decree;  for  it  was  entirely 
foreign  to  the  case  made  by  the  bill,  and  it  was  given,  not  to  the 
plaintiff  in  the  suit,  but  to  the  defendant  —  not  against  the  de- 
fendant, but  against  a  total  stranger  to  the  "suit. 

Nor  was  the  anomaly  limited  to  the  granting  of  injunctions  on 
the  application  of  the  executor,  without  requiring  him  to  file  a 
bill ;  for  it  afterwards  became  the  practice  to  grant  them  equally 
upon  the  application  of  the  plaintiff  in  the  administration  suit,^ 
—  a  still  greater  violation  of  principle.  The  granting  of  them 
without  requiring  a  bill  to  be  filed  was  in  itself,  of  course,  a 
violation  only  of  the  principles  of  procedure,  but  the  granting  of 
them  on  the  application  of  the  plaintiff  in  the  administration  suit 
was  a  violation  of  the  rights  of  the  parties ;  for  the  executor  was 
the  only  person  who  had  a  right  to  an  injunction;^  and  if  the 
plaintiff  in  the  administration  suit  had  filed  a  bill  for  an  injunction 
against  a  creditor  who  was  suing  the  executor  at  law,  the  bill 
would  clearly  have  been  bad  on  demurrer.  In  short,  while  the 
granting  of  the  injunction  on  the  motion  of  the  executor  was 
merely  granting  relief  without  a  suit,  the  granting  of  it  on  the 
motion  of  the  plaintiff  in  the  administration  suit  was  granting  relief 
without  a  suit  to  a  party  who  could  not  have  obtained  it  by  a 
suit. 

As  soon  as  it  was  settled  that  all  actions  at  law  by  creditors 
against  an  executor  would  be  stopped  as  soon  as  a  decree  was 
obtained  against  him  for  the  administration  of  the  testator's 
estate,  of  course  it  followed  that,  in  the  like  event,  all  other  suits 
in  equity  against  him,  prosecuted  by  creditors  for  their  own  ex- 
clusive  benefit,   would   also    be  stopped.*     Nor  did  the  stopping 


1  Paxton  V.  Douglas,  8  Ves.  520;  Clarke  v.  Earl  of  Ormonde,  Jac.  loS,  124, /<?r  Lord 
Eldon.     See  also  Hardcastle  v.  Chettle,  4  Bro.  C.  C.  163. 

2  Clarke  v.  Earl  of  Ormonde.  Jac.  loS.  125  ;  Dyer  v.  Kearsley,  2  Mer.  482,  note. 
8  Clarke  v.  Earl  of  Ormonde,  Jac.  108,  \  22,  per  Lord  Eldon. 

*  There  maybe  two  concurrent  suits  in  equity  against  an  executor,  both  of  which  are 
for  the  administration  of  the  testator's  estate  ;  and  in  that  case,  while  neither  suit  can  be 
staved  until  a  decree  is  obtained  in  the  other,  it  does  not  follow  that,  when  a  decree 
is   obtained   in   one,  the  other   will   be   stayed.     If  the   suit  in   which   a  decree  is 

12 


178        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

of  the  latter  involve  any  such  difficulties  of  procedure  as  did 
the  stopping  of  the  former;  for  there  was  but  one  Court  of 
Chancery,  and  all  the  courts  of  equity  held  by  the  different  judges 
were  branches  of  the  Court  of  Chancery;  and,  therefore,  when 
an  administration  decree  was  obtained  against  an  executor  in  one 
suit,  the  proceedings  in  every  other  suit  in  equity  against  him 
were  stayed  upon  a  motion  made  by  him  in  that  suit.  Moreover, 
since  the  passage  of  the  Judicature  Acts,  what  was  always  true 
of  courts  of  equity  has  become  true  of  courts  of  common  law  as 
well ;  for  both  classes  of  courts  are  now  but  branches  of  one 
Supreme  Court.  An  injunction,  therefore,  is  no  longer  necessary 
to  stay  the  proceedings  in  an  action  at  law  against  an  executor; 
but  a  stay  can  be  obtained  upon  a  motion  made  by  the  ex- 
ecutor in  the   action  which  is  sought  to  be  stayed. 

At  length,  therefore,  every  executor  acquired  the  means  of 
having  the  personal  estate  of  his  testator  administered  in  equity, 
and  of  having  it  divided  among  the  several  persons  who  had 
claims  upon  it,  according  to  their  respective  rights  as  they  stood 
at  the  time  of  the  testator's  death,  and  that  too  in  spite  of  any- 
thing that  the  testator's  creditors  could  do  with  a  view  to  obtain- 
ing a  priority  over  each  other. 

So,  too,  every  creditor,  legatee,  and  next  of  kin  of  a  deceased 
person  acquired  the  means  of  having  the  estate  of  the  deceased 
administered  in  equity;  but  creditors  never  acquired  the  means 
of  preventing  an  executor  from  giving  a  preference  to  one  creditor 
of  his  testator  over  other  creditors  of  the  same  degree.  Executors 
had  a  right  to  give  such  a  preference  at  common  law,  and 
equity  never  discovered  any  means  of  preventing  them  from  doing 
it  until  an  administration  decree  was  obtained  against  them,^  and 
of    course    an    executor    could    delay  a  creditor   considerably  in 

first  obtained  embraces  everything  which  the  other  suit  embraces,  so  that  the  plaintiff 
in  the  latter  can  have  everything  that  he  seeks  in  his  own  suit  by  coming  in  under  the 
decree  already  made,  then  the  proceedings  in  the  other  suit  will  be  stayed.  Otherwise 
the  latter  suit  will  be  permitted  to  go  on.  And  if  that  embraces  everything  which  is  em 
braced  in  the  suit  in  which  the  decree  has  been  obtained,  the  proceedings  in  the  latter 
will  be  stayed.  See  Coysgarne  v.  Jones,  Ambl.613;  Law  v.  Rigby,  4  Bro.  C.  C.  60 
Pott  V.  Gallini,  i  S.  &  St.  206  ;  Jackson  v.  Leaf,  i  Jac.  &  W.  229. 

1  Waring  v.  Danvers,  i  P.  Wms.  295.  In  the  Matter  of  Radcliffe,  7  Ch.  D.  733 
Jessel,  M.  R.,  said  the  only  way  of  preventing  preferences  by  executors,  before  an  admin 
istration  decree  was  obtained,  was  by  procuring  the  appointment  of  a  receiver.  A  re 
ceiver  cannot,  however,  be  appointed  unless  there  is  misconduct  in  the  executor  (Anon 
12  Ves.  4) ;  and  the  preferring  of  one  creditor  to  another  —  an  act  which  is  perfectly 
legal  —  cannot  be  deemed  misconduct. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 79 

obtaining  such  a  decree.  If,  however,  an  executor  prefer  a 
creditor  by  paying  him  a  part  of  his  debt,  and  afterwards  a  decree 
is  made  for  the  administration  of  the  estate,  the  creditor  so  pre- 
ferred will  not  be  allowed  to  receive  anything  under  the  decree 
until  the  other  creditors  have  received  the  same  proportions  of 
their  debts  that  he  has  received  of  his.^ 

Can  the  estate  of  a  deceased  person  be  administered  upon  a  bill 
filed  by  his  executor?  To  this  question,  the  authorities  furnish 
no  certain  answer ;  ^  but,  upon  principle,  it  seems  clear  that  the 
answer  must  be  in  the  negative.  If  an  executor  file  such  a  bill, 
he  must  do  so,  not  as  a  person  having  claims  to  enforce,  but  as  a 
person  against  whom  claims  are  made.  He  is,  therefore,  properly 
the  defendant  to  such  a  bill ;  and  the  bill  is  properly  filed  by  a 
creditor,  legatee,  or  next  of  kin.  What  right,  then,  has  the  ex- 
ecutor to  reverse  this  state  of  things?  When  a  person  against 
whom  a  claim  is  made,  instead  of  waiting  to  be  sued,  brings  a  suit 
himself  against  the  claimant  to  have  the  claim  against  himself  dis- 
posed of,  he  must  have  some  special  reason  for  doing  so.  What 
reason  is  there  in  the  case  now  supposed?  If,  indeed,  there  is  a 
controversy  as  to  the  persons  who  are  entitled  to  the  estate  of 
a  deceased  person  after  his  debts  are  paid,  or  as  to  the  propor- 
tions in  which  the  several  claimants  are  entitled,  the  executor  may 
undoubtedly  file  a  bill  against  the  claimants;  but  such  a  bill  is  in 
the  nature  of  a  bill  of  interpleader,  and  clearly  no  creditor  of  the 
testator  can  properly  be  a  party  to  it.  Such  a  bill,  indeed,  as- 
sumes that  all  the  debts  are  paid ;  and  it  is  very  doubtful  if  it  does 
not  assume  that  all  legacies  about  which  no  question  is  raised 
are  also  paid. 

A  notion  seems  to  have  once  prevailed  that  an  executor  whose 
testator  died  insolvent  might  maintain  a  bill  against  the  creditors 
of  the  latter,  for  the  express  purpose  of  procuring  the  estate  to  be 
divided  among  all  the  creditors  pro  rata,  with  such  preferences 
only  as  existed  by  law  at  the  time  of  the  testator's  death,  and  in 
Buccle  V.  Atleo^  a  demurrer  to  a  bill  of  that  description  was 
overruled.  Such  a  bill  would  be  primarily  a  bill  to  restrain  the 
testator's  creditors  from  suing  the  executor  at  law;  but  as  a  conse- 
quence of  that  would  be  that  the  creditors  would  be  deprived  of 


1  Wilson  V.  Paul,  S  Sim.  63. 

•^  See  Fielden  v.  Fielden,  i  S.  &  St.  255;  Newman  v.  Norris,  Dick.  259;  Rush  v. 
Higgs,  4  Ves.  638  ;  Davis  v.  Combermere,  15  Sim.  394. 
3  2  Vern.  37. 


I80        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

their  legal  remedy,  equity  must  provide  them  with  another  rem- 
edy; and,  therefore,  the  decree,  after  directing  an  injunction  to 
issue,  would  refer  the  cause  to  a  Master  to  take  an  account  of  the 
estate  and  of  the  debts,  with  a  direction  to  the  Master  to  advertise 
for  creditors  to  come  in  before  him  and  prove  their  debts. ^  There 
would  be  but  one  objection  to  such  a  decree,  but  that  would  be 
conclusive,  namely,  that  equity  would  be  depriving  creditors  of 
their  legal  rights  for  no  other  reason  than  that  it  disapproved  of 
their  having  such  rights.  Accordingly,  the  notion  that  such  a  bill 
would  lie  has  long  been  exploded.^ 

In  spite  of  all  that  we  have  said  in  vindication  of  administration 
bills,  it  must  be  confessed  that  they  still  leave  something  to  be 
desired.  It  has  been  seen  that,  upon  a  bill  filed  by  a  creditor  on 
behalf  of  himself  and  all  the  other  creditors,  the  final  decree  can 
direct  payment  to  none  but  creditors,  and  that,  upon  a  bill  filed 
by  a  pecuniary  legatee  on  behalf  of  himself  and  all  other  pecun- 
iary legatees,  the  final  decree  can  direct  payment  to  none  but 
creditors  and  specific  and  pecuniary  legatees.  It  has  also  been 
seen  that  there  is  a  difficulty  in  requiring  all  the  assets  to  be  paid 
into  court  in  a  suit,  by  the  final  decree  in  which  they  cannot  all 
be  paid  out.  Can,  then,  a  bill  by  a  creditor,  or  by  a  pecuniary 
legatee,  be  so  framed  that  the  final  decree  upon  it  can  direct  the 
distribution  of  the  entire  estate?  In  other  words,  can  such  a  bill 
be  filed  on  behalf,  not  merely  of  the  plaintiff  and  the  other  mem- 
bers of  the  class  to  which  he  belongs,  but  of  all  persons  who  are 


1  Such  a  decree  was  made  in  Morrice  v.  Bank  of  England,  supra,  p.  173  ;  and,  there- 
fore, in  that  case  tlie estate  was  administered  in  a  suit  in  which  the  executrix  was  plaintiff. 
Whenever  equity  restrains  the  owner  of  a  legal  claim  from  enforcing  his  claim  at  law,  it 
must  itself  take  cognizance  of  and  enforce  the  claim.  When,  indeed,  an  administration 
decree  has  been  made  against  an  executor,  and  he  thereupon  files  a  bill  to  restrain  a 
creditor  from  suing  him  at  law,  the  court  has  no  occasion  to  do  more  upon  the  latter  bill 
than  decree  an  injunction ;  but  that  is  because  there  is  already  a  decree  under  which  the 
creditor  can  come  in. 

2  See  Backwell's  Case,  i  Vern.  152 ;  Morrice  v.  Bank  of  England,  Cas.  t.  Talbot,  217, 
224-5,  3  Swanst.  573,  583, /<fr  Lord  Chancellor  Talbot.  In  the  latter  case  it  appears 
from  2  Bro.  P.  C.  (Toml.  ed.)  465, 481,  that  a  bill  had  been  filed  by  some  of  the  creditors 
of  Morrice,  on  behalf  of  themselves  and  the  other  creditors,  to  Q.oxn^€\.2.  prorata  division 
of  the  estate  among  all  the  creditors ;  but  the  bill  was  demurred  to,  and  the  demurrer 
was  allowed.  The  difficulty  in  the  plaintiffs'  way  was  that  they  were  in  no  condition  to 
obtain  an  injunction.  According  to  the  practice  afterwards  established,  the  plaintiffs 
would  have  filed  a  bill  simply  for  the  administration  of  the  estate ;  but  whether  such 
a  bill  would  have  done  them  any  good  or  not,  ought  to  have  depended  upon  whether 
they  could  obtain  an  administration  decree  before  those  creditors  whom  the  executrix 
wished  to  prefer  could,  with  the  assistance  of  the  executrix,  obtain  a  personal  decree 
against  the  latter. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         l8l 

interested  in  the  estate,  or  who  have  claims  upon  it  ?  It  seems  to 
have  been  generally  supposed  that  it  cannot.  Why  ?  Because  it 
has  been  generally  supposed  that  a  creditor  or  legatee  who  files 
a  bill  on  behalf  of  himself  and  others  represents  those  others  in 
the  suit,  and  hence  that  the  latter  are  constructively  plaintiffs  in 
the  suit;  and  if  this  were  so,  it  would  follow  that  all  those  on 
whose  behalf  the  bill  is  filed  must  constitute  a  class;  for  no  one 
can  be  a  constructive  plaintiff  in  a  suit  who  could  not  also  be 
a  nominal  plaintiff,  and  all  the  plaintiffs  in  a  suit,  whether  nomi- 
nal or  constructive,  must  be  capable  of  acting  together  as  a  unit, 
and  hence,  if  they  have  not  all  one  right,  they  must  at  least  have 
one  and  the  same  case  to  establish. 

But  is  it  true  that  all  those,  on  whose  behalf  a  creditor  or  a  pecun- 
iary legatee  of  a  testator  brings  a  suit  against  the  executor,  are 
plaintiffs  in  the  suit  t  It  seems  not.  First,  none  but  the  nominal 
plaintiff  or  plaintiffs  are  treated  by  the  decree  as  plaintiffs.  For 
example,  the  first  decree  when  the  suit  is  by  a  creditor  directs 
the  Master  to  take  an  account  of  what  is  due  to  the  plaintiff  and 
all  the  other  creditors  of  the  testator,  and,  after  directing  the  Mas- 
ter to  cause  an  advertisement  to  be  published  for  the  creditors  to 
come  in  before  him  and  prove  their  debts,  the  decree  proceeds : 
"  but  the  persons  so  coming  in  to  prove  their  debts,  not  parties  to 
this  suit,  are,  before  they  are  to  be  admitted  as  creditors,  to  con- 
tribute to  the  plaintiff  their  proportion  of  the  expense  of  this  suit, 
to  be  settled  by  the  Master."  ^  So  when  the  decree,  in  a  suit 
either  by  a  creditor  or  by  a  pecuniary  legatee,  directs  that  all  the 
parties  to  the  suit  shall  have  their  costs,  to  be  paid  out  of  the 
estate,  only  the  nominal  parties  are  included.^  So  too  the  final 
decree  in  a  creditor's  suit,  while  it  provides  for  the  payment  of 
all  creditors  who  have  come  in  before  the  Master  and  established 
their  claims,  never  speaks  of  them  as  parties  to  the  suit,  but  refers 
to  them  as  persons  named  as  creditors  in  the  schedule  to  the  Mas- 
ter's report.^  Secondly,  none  but  the  nominal  plaintiff  or  plain- 
tiffs are  plaintiffs  in  fact.  Until  after  the  first  decree  is  made,  none 
but  the  nominal  plaintiff  or  plaintiffs  have  anything  to  do  with  the 
suit,  nor  are  in  any  manner  affected  by  it ;   and  those  who  do  not 


1  Seton  on  Decrees  (ist  ed.)  51. 

2  Creditors  who  come  in  under  an  administration  decree  do  not  even  receive  the  costs 
of  proving  their  debts.  Abell  v.  Screech,  10  Ves.  355 ;  Harvey  v.  Harvey,  6  Madd.  91 ; 
Waite  V.  Waite,  6  Madd.  1 1« 

8  Seton  on  Decrees  (ist  ed.)  58.  ^ 


1 82        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

choose  to  come  in  under  the  decree,  forever  remain  total  strangers 
to  the  suit;   and  yet  every  one  who  is  constructively  a  plaintiff  in 
a  suit  is  so  from  the  beginning,  and  is  interested  in  and  "bound  by 
everything  that  is  done  in  it,  and  he  may,  therefore,  apply  to  the 
court  for  leave  to  take  part  in  its  prosecution.     Even  those  who 
come  in  under  the  decree  in  a  suit  by  a  creditor  or  legatee  do  not 
thereby  become,  constructively  or  otherwise,  plaintiffs  in  the  suit. 
It  is  true  that,   if  their  claims  are  investigated  and  rejected,  they 
will  be  bound  by  the  decision,^  but  that  is  because  their  claims 
have  been  tried;   and  though  the  trial   may  have  been   informal, 
yet  it  was  had  on  their  own  application.     Moreover,  it  is  not  the 
decree  in  the  cause,  but  the  Master's  report  and  the  confirmation 
of  it    by  the   court,  that  binds  them.     That  those  who  come  in 
under  the  decree  are  not  represented  by  the  nominal  plaintiff  or 
plaintiffs,  appears  also  from  the  fact  that,  so  far  as  they  are  repre- 
sented in  the  suit  at  all,  they  severally  represent  themselves.     So 
far  are  they,  indeed,  from  being  represented  by  the  plaintiff,  that 
they  may  contest  the  plaintiff's  claim  (as  they  may  the  claims  of 
each  other)  in  the  Master's  office.     Thirdly,  there  is  no  necessity 
that  all  those  on  whose  behalf  the  suit  is  brought  should  be  con- 
structive plaintiffs  in  the  suit.     When  the  suit  is  by  a  residuary 
legatee  or  next  of  kin,  it  will  not  be  seriously  claimed  that  the 
creditors  and  legatees  who  come  in  under  the  decree  are  construc- 
tive plaintiffs  in  the  suit;   and  yet  those  who  come  in  under  the 
decree  in  such  a  suit  stand  in  the  same  relation  to  the  suit  as  those 
who  come  in  under  the  decree  in  a  suit  by  a  creditor  or  pecuniary 
legatee.     The  only  difference  that  exists  is  in  the  reason  for  their 
being  let  in.     In  the  one  case  they  are  let  in  because  the  letting  of 
them  in  is  a  sifie  qua  non  of  the  plaintiff's  obtaining    the   relief 
which  he  seeks,  while,  in  the  other  case,  they  are   let  in  because 
the  plaintiff  voluntarily  consents  to  their  being  let  in.     Fourthly, 
the  creditors  or  pecuniary  legatees  of  a  testator  do  not  constitute 
a  class  of  persons  in  such  a  sense  that  they  can  all  be  made  co- 
plaintiffs  in  a  suit,  either  constructively  or  nominally.     That  they 
cannot  all  unite  as  nominal  plaintiffs  is    clear;   for  not  only  has 
each  of  them,  presumably,  a  separate  and  distinct  right,  but  the 
right  of  each,  presumably,  depends  upon  a  wholly  separate  and 
distinct  case.     Indeed,  if  any  two  creditors  or  pecuniary  legatees 
of  the  same  testator  (not  being  joint  creditors  or  legatees)  should 

1  See  Neve  v.  Weston,  3  Atk.  557;  Teed  v.  Beere,  28  L.  J.,  Chan.,  782;  Barker  v. 
Rogers,  7  Hare,  19;  Thomas  v.  Griffith,  2  De  G.,  F.  &  J.  555. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 83 

unite  in  filing  a  bill  for  the  recovery  of  their  respective  debts  or 
legacies,  their  bill  would  be  bad  for  multifariousness.  And  yet 
the  sure  mode  of  testing  the  question,  whether  a  given  class  of 
persons  can  be  made  constructively  co-plaintiffs  (one  of  their 
number  being  the  nominal  plaintiff),  is  to  inquire  whether  they 
could  all  unite  as  nominal  co-plaintiffs ;  for  there  is  but  one  reason 
for  permitting  persons  to  be  made  constructive  parties  to  a  suit, 
namely,  that  they  are  so  numerous  that  it  is  inconvenient  to  make 
them  all  nominal  parties. 

But  even  if  all  pecuniary  legatees,  and  all  creditors  whose  debts 
are  of  the  same  degree,  constitute  each  a  class,  for  the  purposes 
of  the  question  now  under  consideration,  it  will  not  follow  that 
all  creditors,  whatever  their  degree,  also  constitute  a  class.  A 
creditor  by  judgment  or  by  specialty  differs  as  much,  for  the 
purposes  of  the  present  question,  from  a  creditor  by  simple  con- 
tract as  the  latter  does  from  a  pecuniary  legatee ;  and  yet  no  one 
will  claim  that  creditors  and  pecuniary  legatees  can  be  made  co- 
plaintiffs,  either  constructively  or  nominally.  To  claim,  therefore, 
that  all  the  persons  on  whose  behalf  a  suit  is  brought  by  a  cred- 
itor or  a  pecuniary  legatee  are  constructive  co-plaintiffs  is  to 
claim  that  the  practice  which  has  always  prevailed  is  erroneous ; 
for  it  has  always  been  the  practice  for  creditors  to  file  their 
bills  on  behalf  of  themselves  and  all  other  creditors,  of  whatever 
degree;^  and,  indeed,  any  other  practice  would  have  been 
attended  with  the  greatest  inconvenience,  so  long  as  the  debts  of 
deceased  persons  had  priority  according  to  their  respective 
degrees. 

Undoubtedly,  it  has  been  common  for  two  or  more  creditors  or 
pecuniary  legatees  to  unite  in  filing  a  bill  on  behalf  of  themselves 
and  all  other  creditors  or  pecuniary  legatees;  but  that  practice 
has  arisen  from  the  error  of  supposing  that  those  who  file  the  bill 
represent  all  those  on  whose  behalf  it  is  filed ;  for  it  is  well  known 
that,  when  the  plaintiffs  in  a  suit  constitute  a  class   of  persons, 

^  It  has,  indeed,  been  made  a  question  whether  a  secured  creditor  can  file  a  bill  on 
behalf  of  unsecured  creditors.  Thus,  in  Burney  v.  Morgan,  i  S.  &  St.  35S,  362,  Sir  John 
Leach,  V.  C,  said :  "  A  mortgagee  has  no  common  interest  with  the  creditors  at  large, 
and  cannot  sue  on  their  behalf."  So  in  White  v.  Hillacre,  3  Y.  &  Coll.  597,  it  was  held 
that  a  mortgagee  could  not  sue  both  as  mortgagee  and  also  on  behalf  of  himself  and  all 
other  creditors  of  the  debtor,  such  rights  of  suing  being  inconsistent  with  each  other. 
On  the  other  hand,  in  Skey  v.  Bennett,  2  Y.  &  Coll.  C.  C.  405,  it  was  held  that  a  mort- 
gagee may  maintain  a  bill  on  behalf  of  himself  and  all  the  other  creditors  of  the  deceased 
mortgagor.     And  see  infra,  pp.  1S6-S7. 


l84        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

some  of  whom  are  made  plaintiffs  by  representation,  the  bill  not 
only  may,  but  should,  be  filed  by  more  than  one  member  of 
the  class,  in  order  that  the  court  may  have  more  security  than  the 
presence  of  a  single  member  of  the  class  would  aff"ord  that  the 
interests  of  those  who  are  present  only  by  representation  will  be 
properly  cared  for. 

Upon  the  whole,  therefore,  it  seems  that  those  on  whose  behalf 
an  administration  bill  is  filed  are  not  represented  by  the  person 
who  files  the  bill,  and  therefore  they  need  not  constitute  a  single 
class  of  persons,  but  may  comprise  all  persons  who  are  interested 
in  the  estate  to  be  administered,  or  who  have  claims  upon  it;  and 
it  seems  desirable  that,  in  many  cases  at  least,  administration  bills 
should  be  filed  on  behalf  of  all  the  persons  just  named.  Undoubt- 
edly there  is  a  wide  distinction  between  creditors,  on  the  one 
hand,  and  legatees  or  next  of  kin,  on  the  other;  and  there  may  be 
litigation  or  other  causes  of  delay  aff'ecting  the  latter  with  which 
the  former  are  not  concerned,  and  by  which,  therefore,  they  ought 
not  to  be  delayed  in  obtaining  payment  of  their  debts.  It  does 
not  follow,  however,  because  a  bill  is  filed  on  behalf  of  legatees  or 
next  of  kin,  as  well  as  of  creditors,  that  the  creditors  must  wait 
for  the  payment  of  their  debts  until  the  claims  of  legatees  or  next 
of  kin  can  also  be  satisfied ;  for,  when  the  first  decree  is  made, 
referring  the  cause  to  a  Master,  the  Master  may  be  directed  to 
make  a  separate  report  as  to  creditors  as  soon  as  the  reference  is 
completed  as  to  them  ;  and,  as  soon  as  such  report  is  made  and 
confirmed,  the  cause  may  be  set  down  for  a  further  hearing,  and 
a  decree  made  for  the  payment  of  the  creditors,  leaving  the  cause 
to  proceed  as  to  legatees  or  next  of  kin.^ 

If  it  be  asked  what  inducement  a  creditor  can  have  to  file  a  bill 
on  behalf  of  legatees  or  next  of  kin,  it  may  be  answered  that  he 
has  the  same  inducement  that  he  has  to  file  a  bill  on  behalf  of 
other  creditors  than  himself,  namely,  the  avoiding  of  the  risk 
of  having  his  bill  superseded  by  a  bill  filed  by  a  residuary  legatee 
or  a  next  of  kin,  or  even  by  another  creditor  on  behalf  of  the 
legatees  or  next  of  kin  as  well  as  of  the  creditors. 

Thus  far  it  has  been  assumed  that  the  creditors  of  a  testator 
were  seeking  payment  of  their  debts  out  of  his  personal  estate 
alone.  But  bond  creditors  were  always  entitled  to  be  paid  out  of 
the  testator's  real  estate,  if  his  personal  estate  proved  deficient; 

1  Sec  Colder  v.  Colder,  9  Hare,  276. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 85 

and,  therefore,  when  a  bond  creditor  of  a  deceased  debtor  filed 
a  bill  to  compel  payment  of  his  debt,  he  was  entitled  to  make  the 
debtor's  heir  or  devisee,  as  well  as  his  executor,  a  defendant  to 
the  bill,  and  it  was  necessary  for  him  to  do  so,  if  he  wished  to 
avail  himself  of  his  remedy  a<^^ainst  the  real  estate.  It  was  also 
necessary  that  he  should  file  his  bill  on  behalf  of  all  the  bond 
creditors  of  the  testator;  otherwise  the  heir  or  devisee  might 
demur. ^  The  reason  of  this  was  that  such  a  bill,  as  against  the 
heir  or  devisee,  was  a  bill  to  have  the  testator's  real  estate,  or  a 
sufficient  part  of  it,  sold  or  mortgaged,  under  the  direction  of  the 
court,  for  the  payment  of  the  testator's  bond  debts;  and,  as  this 
was  a  proceeding  which  required  considerable  time,  and  involved 
considerable  labor  and  expense,  considerations  of  convenience  and 
economy  demanded  that  it  should  be  gone  through  with  once  for 
all;  2  and,  therefore,  no  creditor  was  permitted  to  file  such  a  bill 
solely  for  his  own  benefit.  The  bill  ought  also,  for  a  reason  which 
will  appear  presently,^  to  be  on  behalf  of  the  simple  contract 
creditors  as  well  as  of  the  other  bond  creditors;  but  the  only 
penalty  that  the  plaintiff  incurred  by  not  so  framing  his  bill  was 
the  risk  of  having  it  superseded  by  the  bill  of  some  other  creditor 
more  properly  framed.  It  is  indispensable,  too,  that  the  executor 
be  a  co-defendant  with  the  heir  or  devisee,  as  the  latter  are 
entitled  to  have  the  personal  estate  exhausted  before  the  real 
estate  is  resorted  to ;   and  it  is  only  by  making  the  executor  a  co- 


1  Bedford  v.  Leigh,  Dick.  707  ;  Johnson  v.  Compton,  4  Sim.  37  ;  May  v.  Selby,  i  Y. 
&  Coll.  C.  C.  23s  ;  Ponsford  v.  Hartley,  2  J.  &  H.  736  ;  Worrakert'.  Pryer,  2  Ch.  D.  109 ; 
Fryer  v.  Royle,  5  Ch.  D.  540.  The  better  view,  however,  would  seem  to  have  been  that 
the  decree  should  be  for  the  benefit  of  all  the  bond  creditors,  whether  the  bill  was  in 
terms  on  their  behalf  or  not ;  and  that  view  appears  to  have  formerly  prevailed.  Martin  v. 
Martin,  1  Ves.  211,  213-14  ;  White  v.  Hillacre,  3  Y.  &  Coll.  597,  610,  note.  As  a  bond 
creditor  is  entitled  to  a  remedy  in  equity  against  the  heir  or  devisee  only  on  the  terms  of 
his  permitting  all  other  bond  creditors  to  share  in  the  benefit  of  his  suit,  the  mere  fact  of 
his  making  the  heir  or  devisee  a  defendant  to  his  bill  ought,  it  seems,  to  be  deemed  suffi- 
cient evidence,  unless  the  contrary  appears,  that  he  intends  his  bill  to  be  for  the  benefit 
of  all  the  bond  creditors.  See  Cowper  v.  Blissett,  i  Ch.  D.  691  ;  Worraker  v.  Pryer, 
2  Ch.  D.  109.  The  view  stated  in  the  te.xt  seems  to  have  originated  in  the  idea  that, 
when  the  bill  is  in  terms  on  behalf  of  all  the  other  bond  creditors,  the  latter  become 
constructively  co-plaintiffs  in  the  suit,  and  hence  that  a  bill  which  is  not  in  terms 
on  behalf  of  all  the  bond  creditors  is  defective  for  want  of  parties.     See  supra,  p.  iSo 

et  seq. 

2  It  is  obvious,  too,  that  real  estate  can  generally  be  sold  to  much  better  advantage  if  it 
is  known  from  the  beginning  how  much  will  have  to  be  sold,  or  rather  how  much  money 
will  have  to  be  raised. 

8  See  infra,  pp.  189-go. 


1 86        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

defendant  that  it  can  be   ascertained  whether  and  to  what  extent 
the  personal  estate  is  insufficient  for  the  payment  of  debts.^ 

The  first  decree,  upon  a  bill  to  which  the  heir  or  devisee  is 
made  a  defendant,  will  first  direct  an  administration  of  the  per- 
sonal estate,  just  as  if  the  executor  were  the  sole  defendant ; 
and  if  the  personal  estate  be  found  by  the  Master  to  be  insufficient 
to  pay  the  debts  in  full,  he  will  be  directed  to  inquire  and  report 
to  the  court  what  real  estate,  if  any,  the  debtor  left.^  If  the 
Master  report  the  personal  estate  to  be  insufficient  to  pay  the 
debts,  and  that  the  debtor  left  real  estate,  the  cause  will  be  set 
down  for  a  further  hearing,  and  a  second  decree  will  be  made 
directing  the  Master  to  cause  the  amount  in  which  the  personal 
estate  is  deficient  to  be  raised  by  a  sale  or  mortgage  of  the  real 
estate,  or  a  sufficient  part  thereof,  and  the  money  so  raised  to  be 
paid  into  court;  and  if  the  required  amount  cannot  be  raised  by 
a  sale  of  the  real  estate,  the  Master  will  be  directed  to  take  an 
account  of  the  rents  and  profits  of  such  real  estate  from  the 
time  of  the  testator's  death  to  the  time  of  the  sale ;  and  when 
the  amount  of  such  rents  and  profits  shall  thus  be  ascertained  the 
same  will  also  be  required  to  be  paid  into  court.  When  the 
directions  in  the  decree  have  been  fully  carried  out,  and  the 
Master  has  made  his  report,  and  his  report  has  been  confirmed, 
the  cause  will  be  set  down  again,  and  a  third  and  final  decree  will 
be  made,  the  terms  of  which  will  be  the  same,  mutatis  mutandis, 
as  those  of  the  final  decree  in  a  suit  against  the  executor  alone. 

As  soon  as  the  second  decree  is  made,  all  proceedings  at  law 
against  the  heir  or  devisee  will  be  enjoined  on  the  application  of 
the  latter,  and  for  the  same  reason  that  all  proceedings  at  law 
against  the  executor  will  be  enjoined  on  his  application  as  soon 
as  the  first  decree  is  made ;  ^  and  it  is  somewhat  remarkable  that 
this  principle  was  established  as  to  heirs  and  devisees  before  it 
was  established  as  to  executors.^ 

A  creditor  of  a  living  debtor  who  has  a  lien  upon  the  property 
of  the  latter  for  the  security  of  his  debt  may  first  sue  the  debtor 
personally  for  the  debt,  and,  if  he  fail  to  obtain  payment  in  full 


1  Plunket  V.  Penson,  2  Atk.  51 ;  Article  VI.,  supra,  pp.  152-53;  Row.sell  v.  Morris, 
L.  R.  17  Eq.  20;  Dowdeswell  v.  Dowdeswell,  9  Ch.  D.  294.  But  see  Ambler  z'.  Lindsay, 
3Ch.D.  198. 

"^  Seton  on  Decrees  (ist  ed.)  134-35. 

*  Sumner  v.  Kelly,  2  Sch.  &  Lef.  398.     See  Farnhara  v.  Burroughs,  Dick.  63. 

*  Martin  v.  Martin,  i  Ves.  211,  213. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.         1 87 

by  that  means,  he  may  then  realize  upon  his  security;  or  he  may 
first  realize  upon  his  security,  and,  if  that  prove  insufficient  to  pay 
the  debt  in  full,  he  may  then  sue  the  debtor  personally  for  what 
still  remains  due  to  him.  If  he  be  able  to  realize  upon  his  secur- 
ity without  a  suit,  an  action  at  law  against  the  debtor  personally 
will  give  him,  in  either  case,  all  the  judicial  assistance  that  he  will 
need.  But  if  he  can  realize  upon  his  security  only  by  a  suit  in 
equity  (^c.g.,  where  a  mortgagee  can  procure  a  sale  of  the  mort- 
gaged property  only  by  a  suit  in  equity  for  that  purpose),  a  suit 
in  equity,  as  well  as  an  action  at  law,  will  in  each  case  be  neces- 
sary; and  the  only  question  with  the  creditor  will  be  whether  lie 
will  first  sue  at  law  and  then  in  equity,  or  first  in  equity  and  then 
at  law. 

What  is  thus  true  of  a  creditor  of  a  living  debtor  is  also  true, 
mutatis  mutandis,  of  a  creditor  of  a  deceased  debtor  who  has  a  lien 
upon  property  of  the  latter,  except  that,  in  the  case  of  a  creditor 
of  a  deceased  debtor,  one  suit  in  equity  against  the  representative 
or  representatives  of  the  debtor  will  answer  every  purpose.  In 
such  a  suit,  the  bill  may  be  framed  just  as  it  would  be  if  the  cred- 
itor had  no  security,^  except  that  it  will  pray  (by  way  of  additional 
relief)  for  a  realization  of  the  security  by  a  sale ;  ^  and,  in  anal- 
ogy to  the  case  of  an  action  at  law  and  a  suit  in  equity  by  a  cred- 
itor of  a  living  debtor,  he  may  either  pray,  first,  that  the  debt 
be  paid  by  the  representative  or  representatives  of  the  debtor, 
and,  if  payment  in  full  shall  not  be  thus  obtained,  that  then  the 
security  be  realized;  or  he  may  pray,  first,  that  the  security  be 
realized,  and,  if  that  prove  insufficient  to  pay  the  debt  in  full,  that 
the  remainder  be  paid  by  the  representative  or  representatives  of 
the  debtor.^ 

It  may  be  inferred  from  what  has  been  said  that,  when  a  debtor 
dies  insolvent,  a  creditor  who  has  security  for  his  debt  may  claim 
dividends  from  the  estate  upon  his  whole  debt,  just  as  if  he  had  no 
security,  and  may  then  resort  to  his  security  for  whatever  remains 
due  to  him ;   and  such  was  formerly  the  law.^     But,  by  the  Judi- 

1  And,  therefore,  it  may  be  either  for  the  plaintiff's  exclusive  benefit,  or  on  behalf  of 
the  plaintiff  and  all  the  other  creditors,  though,  if  it  seek  relief  against  the  real  estate  of 
the  testator,  it  must,  of  course,  be  on  behalf  of  all  creditors  who  are  entitled  to  such  relief. 
See  Bedford  v.  Leigh,  Dick.  707. 

2  Skey  V.  Bennett,  2  Y.  &  Coll.  C.  C.  405  ;  King  v.  Smith,  2  Hare,  239.  But  see 
White  V.  Hillacre,  3  Y.  &  Coll.  597  ;  Raikes  v.  Hall,  cited  3  Y.  &  Coll.  605. 

8  See  Bedford  v.  Leigh,  supra.. 

*  Mason  v.  Bogg,  2  M.  &  Cr.  443,  overruling  Greenwood  v.  Taylor,  i  R.  &  M-  185. 


1 88        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

cature  Act,  1875,^  the  rule  which  has  always  prevailed  in  bank- 
ruptcy (according  to  which  a  secured  creditor  receives  dividends 
upon  so  much  only  of  his  debt  as  the  security  is  insufficient  to 
pay)  was  made  applicable  to  the  administration  in  equity  of  the 
estates  of  deceased   persons. 

It  remains  to  speak  briefly  of  certain  important  incidental 
objects  accomplished  by  equity  through  the  instrumentality  of 
administration  suits,  —  objects  which  otherwise  either  would  not 
have  been  accomplished  at  all,  or  would  have  been  accomplished 
only  at  a  greatly  increased  expense  and  delay.  These  objects  are 
chiefly,  first,  the  promotion  of  equality  among  the  creditors  of 
deceased  debtors ;  secondly,  the  application  of  the  real  estate  of 
deceased  debtors  to  the  payment  of  all  their  debts;  thirdly,  the 
carrying  out  of  the  intentions  of  testators  as  to  the  dispositions 
of  their  estates. 

First.  It  has  been  seen  that  the  common  law  ranked  the  cred- 
itors of  deceased  debtors  according  to  the  nature  of  their  debts, 
and  that  it  also  empowered  executors  to  make  such  preferences  as 
they  chose  among  creditors  of  their  testators  whose  debts  were  of 
the  same  nature.  These  preferences  equity  had  no  power  to  pre- 
vent, but  it  could  and  did  greatly  mitigate  the  injustice  which  they 
would  otherwise  have  worked.  The  way  in  which  equity  did  this 
was  very  characteristic  (and  well  illustrates  the  methods  by  which 
equity  accomplishes  its  objects),  namely,  by  counteracting  one 
preference  by  means  of  another  preference,  and  thus  bringing 
about  an  equality.  Thus,  if  a  testator,  when  he  died,  owed  A  and 
B  $1,000  each  by  simple  contract,  and  the  executor  has  paid  A 
$500  while  he  has  paid  B  nothing,  equity  will  first  pay  B  $500, 
and  then  it  will  pay  them  both  ratably.'-^  The  principle  upon 
which  equity  does  this  is  that,  when  it  takes  upon  itself  the  admin- 
istration of  an  estate,  it  succeeds  to  all  the  powers  which  the 
executor  previously  had,  and  that  it  will  wield  those  powers  in 
such  manner  as  will  best  serve  the  purposes  of  justice.  It  was, 
however,  in  counteracting  the  preferences  given  by  law  that  equity 
achieved  its  greatest  success;  and  this  it  did  upon  another  prin- 
ciple, namely,  that  equity  is  entitled  to  deal  in  its  own  way  with 
rights  which  are  of  its  own  creation.  The  estates  of  deceased 
persons  were  divided  by  equity  into  two  great  classes  of  assets, 
namely,  legal  and  equitable.     Legal  assets  were  such  as  the  per- 

1  38  &  39  Vict.,  c.  77,  s.  10.  2  See  supra,  p.  179,  n.  i. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         189 

sonal  and  real  representatives  of  deceased  debtors  were  bound  by 
law  to  apply  in  payment  of  the  debts  of  the  latter,  while  equitable 
assets  were  such  as  they  were  bound  only  in  equity  so  to  apply. 
Moreover,  this  latter  class  of  assets  (for  reasons  which  it  is  not 
necessary  here  to  enter  into)  embraced  a  much  larger  amount  of 
property  than  might  at  first  sight  be  supposed.  Whenever,  there- 
fore, equity  was  called  upon  to  administer  an  estate  which  con- 
sisted in  part  of  equitable  assets,  it  not  only  applied  the  latter  to  the 
payment  of  all  debts  equally,  whatever  their  degree,  but,  if  any 
creditors  to  whom  the  law  gave  a  preference  had  availed  them- 
selves of  that  preference,  the  decree  directed  that  such  creditors 
should  receive  nothing  out  of  the  equitable  assets  until  the  other 
creditors  were  paid  the  same  proportion  of  their  debts  out  of  the 
equitable  assets  that  they  had  received  out  of  the  legal  assets.^ 

Secondly.  Equity  could  not  make  the  real  estate  of  a  deceased 
debtor  directly  liable  for  his  simple  contract  debts,  without  a 
violation  of  law ;  but  it  exercised  the  right  of  throwing  the  whole 
burden  of  the  specialty  debts  of  deceased  debtors  upon  their  real 
estate,  thus  securing  the  whole  of  the  personal  estate  for  the 
simple  contract  creditors  ;  and  this  it  did  by  means  of  subrogation. 
Accordingly,  in  every  administration  suit  in  which  the  heir  or 
devisee  of  the  deceased  debtor  was  a  defendant,  if  there  were  or 
might  be  specialty  debts,  the  decree  directed  that,  in  case  the 
specialty  creditors  should  exhaust  any  part  of  the  personal  estate 
in  paj'ment  of  their  debts,  then  the  simple  contract  creditors 
should  stand  in  their  place,  and  receive  payment  pro  iaiito  out  of 
the  real  estate.^  In  thus  acting,  equity  was  mitigating  the  effect 
of  an  iniquitous  rule  of  law,  and  was  relieving  simple  contract 
creditors  from  a  gross  injustice;  and  if  the  real  estate  had  been 
by  law  primarily  liable  for  the  specialty  debts,  the  personal  estate 
being,  as  to  such  debts,  only  a  surety  for  the  real  estate,  equity 
would,  as  a  matter  of  course,  have  thrown  the  specialty  debts 
wholly  upon  the  real  estate,  in  the  manner  just  stated ;  and  even 
if  the  personal  and  real  estates  had  each  been  primarily  liable  for 
the  specialty  debts,  it  would  have  been  a  matter  of  course  for 
equity  to  have  thrown  upon  the  real  estate  its  pro  rata  share  of 
such  debts.  In  truth,  however,  the  personal  estate  was  by  law 
primarily  liable  for  all  debts,  and  it  was  only  as  a  surety  for  the 

1  Seton  on  Decrees  (ist  ed.)  90;  Haslewood  v.  Pope,  3  P.  Wms.  322. 

2  Seton  on  Decrees  (ist  ed.)  88.  See  Pott  v.  Gallini,  i  S.  &  St.  206;  Wilson  v. 
Fielding,  2  Vern.  763,  10  Mod.  426;  Gibbs  v.  Ougier,  12  Ves.  413. 


190        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

personal  estate  that  the  real  estate  was  Hable  even  for  specialty 
debts;  and  it  seems,  therefore,  impossible  to  justify  equity,  in 
point  of  law,  in  relieving  the  personal  estate  from  specialty  debts 
by  throwing  the  latter  upon  the  real  estate  even  for  so  worthy  an 
object  as  that  of  securing  payment  of  the  simple  contract  debts.^ 

Thirdly.  When  a  deceased  person  has  left  a  will,  by  which  he 
has  divided  his  estate  among  various  persons,  or  by  which  he  has 
divided  parts  of  it  among  various  persons,  leaving  other  parts  of 
it  undisposed  of,  it  is  frequently  a  very  nice  question  of  construc- 
tion, upon  which  of  the  various  beneficiaries  under  the  will,  and 
in  what  order,  the  burden  of  the  testator's  debts  and  pecuniary 
legacies  shall  fall;  and  this  question  must  of  course  be  decided 
before  the  estate  can  be  fully  administered.  So  long  as  debts  and 
legacies  are  imposed  only  upon  property  which  is  by  law  liable 
for  the  payment  of  them,  or  which  is  made  so  liable  by  the  tes- 
tator, or  upon  property  over  which,  being  equitable  assets,  the 
court  has  full  power  no  technical  difficulty  can  arise,  nor  any  diffi- 
culty as  to  the  power  of  the  court.  Having  decided  the  question 
of  construction,  the  court  simply  proceeds  to  direct  such  parts  of 
the  estate  to  be  applied  in  payment  of  debts  and  pecuniary  lega- 
cies as  it  has  decided  ought  to  be  so  applied,  and  in  such  order  as 
it  has  decided  that  they  ought  to  be  applied.^  It  often  happens, 
however,  that  the  court  goes  beyond  the  limits  just  indicated. 
For  example,  the  testator  gives  specific  and  pecuniary  legacies, 
and  leaves  land  to  descend  to  his  heir,  and  leaves  debts  sufficient 
to  exhaust  his  entire  personal  estate ;  but  if  the  specialty  debts  be 
all  thrown  upon  the  land,  the  personal  estate,  not  specifically 
bequeathed,  will  be  sufficient  to  pay  the  simple  contract  debts  and 
the  pecuniary  legacies.  In  such  a  case,  the  court  by  its  decree 
will  direct  that  in  case  the  specialty  creditors  exhaust  any  part 
of  the  personal  estate,  the  simple  contract  creditors  first,  and  then 
the  pecuniary  legatees,  shall  stand  in  the  place  of  such  specialty 
creditors,  and  receive  payment  pro  tanto  out  of  the  land.'^  The 
argument,  of  course,  is  that  the  testator  must  have  intended  that 
his  legacies  should  be  paid  if  he  left  property  sufficient  to  pay 
them,  and  that  his  heir  should  take  only  what  was  left  after  debts 
and  legacies  were  paid.     The  answer  is,  that  legacies  are  not  by 

1  See  supra,  pp.  15-16. 

2  Haslewood  v.  Pope,  3  P.  Wms.  322;  Arnold  v.  Chapman,  i  Ves.  108;  Daven- 
hill  V.  Fletcher,  i  Madd.  Ch.  Pr.  (3d  ed.),  p.  768. 

3  Seton  on  Decrees  (ist  ed.)  93-4,  96-7 ;  Davenhill  v.  Fletcher,  supra. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         I91 

law  payable  out  of  land  any  more  than  debts  by  simple  contract  are, 
unless  they  are  charged  upon  the  land  by  the  testator.  It  will  be 
admitted  that  the  court  cannot  make  the  land  liable  directly  for  the 
payment  of  legacies,  any  more  than  of  simple  contract  debts  ;  and, 
therefore,  it  cannot  do  so  indirectly.  There  seems  to  be  no  differ- 
ence between  the  case  of  pecuniary  legacies  and  that  of  simple 
contract  debts,  except  in  the  object  which  the  court  seeks  to  ac- 
complish, the  object  being,  in  the  one  case,  to  carry  out  the  inten- 
tion of  the  testator,  in  the  other,  to  do  justice  to  simple  contract 
creditors,  both  undoubtedly  worthy  objects,  but  yet  not  sufficient 
to  justify  the  court  in  violating  the  law. 


ARTICLE     V  I  I  I.i 


VII. 
Real  Obligations. 

THE  last  five  articles  have  been  occupied  with  a  consideration 
of  the  jurisdiction  of  equity  over  personal  obligations,  and 
those  articles  contain  all  that  it  is  thought  necessary  to  say,  in 
this  brief  survey,  on  that  branch  of  equity  jurisdiction. 

The  next  topic  to  be  considered,  according  to  the  classification 
of  legal  rights  stated  in  the  first  of  this  series  of  articles,  is  that  of 
real  obligations.  The  jurisdiction  of  equity,  however,  over  this 
class  of  legal  rights  will  not,  it  is  hoped,  detain  us  very  long. 

A  real  obligation  is  undoubtedly  a  legal  fiction,  i.  c,  a  fiction 
invented  by  the  law  for  the  promotion  of  convenience  and  the 
advancement  of  justice.  The  invention  consists  primarily  in  per- 
sonifying an  inanimate  thing,  and  giving  it,  so  far  as  practicable, 
the  legal  qualities  of  a  human  being.  The  invention  was  originally 
made  by  the  Romans,  and  it  has  been  borrowed  from  them  by 
the  nations  which  have  succeeded  them.  It  may  be  doubted  also 
whether  modern  nations  would  have  invented  the  fiction  for  them- 
selves ;  for  it  is  less  necessary,  as  well  as  much  less  obvious,  in  mod- 
ern times,  than  it  was  when  the  Roman  State  was  founded.  The 
reason  of  this  will  be  found  in  the  change  which  has  taken  place 
in  respect  to  the  legal  consequences  of  personal  obligations.  An 
obligation,  according  to  its  true  nature,  can  be  enforced  only 
against  the  person  or  thing  bound  by  it,  and,  on  the  other  hand, 
the  person  or  thing  bound  by  an  obligation  becomes  thereby  abso- 
lutely subject  to  the  power  of  the  obligee,  in  case  the  obligation  is 
not  performed ;   and  this  was  the  light  in  which  an  obligation  was 

1  10  Harv.  L.  Rev.  71. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 93 

originally  regarded  by  the  Romans.  Moreover,  a  personal  obliga- 
tion, ex  vi  termmi,  binds  only  the  person  {i.  c,  the  body)  of  the 
obligor  or  debtor,  and  has  nothing  to  do  with  his  property.  Con- 
sequently, by  the  Roman  law,  when  a  personal  obligation  was 
broken  the  obligee  or  creditor  originally  had  no  legal  means  of 
procuring  satisfaction  from  the  debtor's  property;  he  could  compel 
satisfaction  out  of  the  debtor's  property  only  indirectly,  namely, 
by  exerting  his  legal  power  over  the  debtor's  body.  It  is  plain, 
however,  that  the  interests  of  debtors  and  creditors  alike  required 
that  a  debtor  should  be  able  to  give  a  creditor  the  same  rights 
against  the  debtor's  property,  or  some  portion  of  it,  that  a  personal 
obligation  gave  him  against  the  debtor's  body,  and  no  better  or 
more  obvious  mode  of  accomplishing  this  object  could  be  adopted 
than  that  of  enabling  a  debtor  to  impose  upon  his  property  an 
obligation  in  favor  of  his  creditor,  in  analogy  to  the  obligation 
which  he  imposed  upon  his  person,  and  accordingly  real  obli- 
gations were  invented  and  came  into  use.  In  time,  however, 
though  indirectly  and  by  slow  degrees,  creditors  acquired  the 
right,  after  obtaining  judgments  upon  personal  obligations,  to 
have  the  same  satisfied  out  of  the  debtor's  property,  and  thus 
one  reason  for  the  existence  of  real  obligations  ceased.  By  still 
slower  degrees,  though  directly  and  through  the  operation  of  posi- 
tive law,  the  rights  of  creditors  against  the  bodies  of  their  debtors 
were  curtailed,  until,  at  the  present  moment,  they  have  almost 
ceased  to  exist.  The  result,  therefore,  is  that  personal  obligations 
have  been  so  perverted  that,  while,  according  to  their  true  nature, 
they  can  be  enforced  only  against  the  persons  of  the  obligors,  they 
can  in  fact  now  be  enforced  for  the  most  part  only  against  their 
property;  and  a  consequence  of  this  has  been,  that  not  only  the 
distinction  between  personal  obligations  and  real  obligations,  but 
the  very  existence  of  the  latter,  as  well  as  the  nature  and  proper 
legal  consequences  of  obligations  generally,  have  been  in  great 
measure  lost  sight  of. 

It  is  a  great  mistake,  however,  to  suppose  that  there  is  no 
longer  any  occasion  for  real  obligations,  or  that  they  have  ceased 
to  exist.  On  the  contrary,  many  of  the  reasons  for  their  existence 
are  as  strong  as  they  ever  were,  and  accordingly  they  are  still  in 
daily  use. 

I.  Although  a  creditor,  when  he  has  obtained  a  judgment  against 
his  debtor  upon  a  personal  obligation,  is  entitled  to  have  the  same 
satisfied  out  of  the  debtor's  property,  yet  a  personal  obligation  of 

13 


194        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

itself  gives  the  creditor  no  right  as  against  the  debtor's  property, 
nor  does  it  at  all  limit  the  debtor's  power  over  his  property;  and 
consequently  it  gives  a  creditor  no  priority  over  other  creditors  of 
the  same  debtor.  In  short,  it  is  only  in  one  event  that  a  personal 
obligation  is  a  satisfactory  security  to  a  creditor,  namely,  that  of 
the  debtor'^  being  solvent,  and  so  remaining  till  the  debt  is  paid. 
If,  therefore,  a  creditor  wishes  to  secure  the  payment  of  his  debt, 
irrespective  of  the  debtor's  solvency,  he  must  obtain  some  other 
security  than  a  personal  obligation,  namely,  a  security  upon  prop- 
erty, either  of  the  debtor  or  of  some  third  person.  Moreover,  there 
are  only  two  ways  of  accomplishing  this  object;  namely,  first,  by 
transferring  the  ownership  of  the  property  to  the  creditor,  or  to 
some  other  person  for  his  benefit;  secondly,  by  creating  an  obliga- 
tion upon  the  property  in  the  creditor's  favor.  The  second  of 
these  modes  was  the  one  exclusively  used  by  the  Romans  in  the 
later  periods  of  their  history,  and  is  the  one,  generally  at  least, 
used  by  the  modern  nations  of  continental  Europe,  while  in  Eng- 
land and  with  us  both  are  used.  The  Romans  had  two  ways  of 
creating  the  obligation-,  namely,  first,  by  the  delivery  of  the  property 
to  the  creditor,  to  be  held  by  him  till  the  debt  was  paid  (^pignns) ; 
secondly,  by  a  mere  agreement  between  the  owner  of  the  property 
and  the  creditor,  the  property  remaining  in  the  possession  of  its 
owner  (JiypotJieca^.  Originally,  possession  of  the  property  by  the 
creditor  was  indispensable,  and  so  the  pigmis  alone  existed  ;  but, 
at  a  later  period,  the  parties  to  the  transaction  were  permitted  to 
choose  between  a  pigmis  and  a  JiypotJicca.  So  long  as  the  pignus 
was  alone  in  use,  it  is  obvious  that  the  obligation  could  be  created 
only  by  the  act  of  the  parties,  as  they  alone  could  change  the  pos- 
session of  the  property.  But  when  the  step  had  been  taken  of 
permitting  the  mere  agreement  of  the  parties  to  be  substituted  for 
a  change  of  possession,  it  was  another  easy  step  for  the  law,  when- 
ever it  saw  fit,  to  substitute  its  own  will  for  the  agreement  of  the 
parties;  and  hence  hypothecations  came  to  be  divisible  into  such 
as  were  created  by  the  acts  of  the  parties  (conventional  hypothe- 
cations) and  such  as  were  created  by  the  act  of  the  law  (legal  or 
tacit  hypothecations).  Again,  so  long  as  a  change  of  possession 
was  indispensable,  it  is  plain  that  the  obligation  could  attach  only 
upon  property  which  was  perfectly  identified,  and  that  there  could 
be  no  change  in  the  property  subject  to  the  obligation,  except  by  a 
new  change  of  possession.  But  when  a  change  of  possession  had 
been  dispensed  with,  and  particularly  when  legal  or  tacit  hypothe- 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         195 

cations  had  been  introduced,  it  became  perfectly  feasible  to  make 
the  obligation  attach  upon  all  property,  or  all  property  of  a  cer- 
tain description,  either  then  belonging  to  the  debtor  or  afterward 
acquired  by  him,  or  upon  all  property,  or  all  property  of  a  certain 
description,  belonging  to  the  debtor,  for  the  time  being;  and  hence 
hypothecations  came  to  be  divided  into  those  which  were  special 
and  those  which  were  general. 

Except  in  the  particulars  just  stated,  there  was  no  difference  be- 
tween the  pignus  and  the  JiypoiJicca.  Each  was  alike  a  real  obli- 
gation ;  and  if,  as  generally  happened,  the  debt  was  created  by  a 
personal  obligation,  the  latter  was  the  principal  obligation,  while 
the  former  was  merely  accessory,  collateral,  or  incidental  to  the 
latter;  and  hence,  whenever  the  principal  obligation  was  extin- 
guished, the  accessory  obligation  fell  with  it;  and  this  explains  the 
fact  that  payment  of  the  debt  extinguished  the  creditor's  rights  in 
the  property  pignorated  or  hypothecated  to  him.  Moreover,  if  the 
property  belonged  to  some  other  person  than  the  debtor,  the  real 
obligation  was  regarded  as  an  obligation  of  suretyship,  the  property 
being  regarded  as  a  real  surety  for  the  debt,  just  as  its  owner 
would  have  been  a  personal  surety,  if  he  had  incurred  a  personal 
obligation  of  suretyship  ;  and  hence  the  owner  of  the  property  had 
the  same  rights  of  subrogation,  whether  his  property  was  a  real 
surety,  or  he  himself  was  a  personal  surety,  for  the  debt. 

If  the  debt  was  not  paid  when  it  became  due,  the  creditor's 
remedy  upon  the  real  obligation  against  the  property  was  closely 
analogous  to  his  remedy  upon  the  debtor's  personal  obligation 
against  the  debtor's  body,  i.  e.,  he  was  entitled  to  proceed  against 
the  property  judicially,  and  have  it  condemned  and  sold  for  the 
payment  of  the  debt. 

The  Roman  law  in  respect  to  the  pignus  has  been  a  part  of  the 
English  law,  under  the  name  of  pawn  or  pledge,  from  time  imme- 
morial, so  far  as  it  is  applicable  to  movable  property,  and  it  has 
never  undergone  any  material  change,  either  in  England  or  in  this 
country.  As  to  immovable  property,  however,  it  has  never  been 
admitted,  i.  c,  it  has  never  been  possible,  either  in  England  or 
in  this  country,  to  impose  an  obligation  upon  land  in  favor  of  a 
creditor  by  simply  placing  the  latter  in  possession  of  it. 

The  Roman  hypothecation  has  been  admitted  into  the  admiralty 
law  of  all  modern  nations,  so  far  as  the  limited  jurisdiction  of  ad- 
miralty has  rendered  its  admission  practicable;  but  it  has  been 
rejected  by  the  English  common  law,  except  in  those  cases  in  which 


196        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

it  is  created  by  the  law  itself.  What  are  such  excepted  cases? 
First,  when  the  debt  is  created  by  judgment  or  other  matter  of 
record,  the  creditor  has  a  general  hypothecation  upon  all  land 
belongincr  to  the  debtor  when  the  debt  is  created,  or  which  is  after- 
wards  acquired  by  him  ;  secondly,  when  the  law  permits  a  plaintiff, 
on  bringing  an  action,  to  attach  property,  such  plaintiff  has  a 
special  hypothecation  upon  the  property  actually  attached  ;  thirdly, 
by  the  law  of  England,  and  of  many  of  our  States,  all  movable 
property  found  upon  leased  land  when  rent  becomes  due,  is 
hypothecated  to  the  landlord  to  secure  the  payment  of  such  rent. 

There  is  also  a  class  of  cases  in  our  law  in  which  debts  are 
secured  by  movable  property  belonging  to  the  debtor,  and  which 
have  some  of  the  characteristics  of  pledges,  and  some  of  the  char- 
acteristics of  hypothecations,  but  as  to  which  it  is  doubtful  whether 
they  can  be  classed  as  either  the  one  or  the  other,  namely,  cases 
in  which  the  debts  have  been  created  by  the  performance  of  ser- 
vices by  the  creditor  on  the  articles  which  furnish  the  security  for 
the  debts,  and  which  articles  have  come  into  the  possession  of  the 
creditor  for  the  purpose  of  his  performing  such  services  upon  them. 
The  right  of  the  creditor  in  all  such  cases  is  called  a  lien,  and 
there  is  no  doubt  that  all  such  liens  are  instances  of  real  obliga- 
tions. Indeed,  the  constant  use  by  English  and  American  lawyers 
of  the  word  "  lien  "  to  designate  the  right  of  the  creditor  in  these 
and  other  cases  of  real  obligations  ought  to  have  been  a  reminder 
to  them  that  there  are  such  things  as  real  obligations. 

What  are  the  remedies  afforded  by  our  law  in  cases  of  pledges, 
hypothecations,  and  liens,  and  to  what  extent,  if  at  all,  does  equity 
assume  jurisdiction  over  them?  In  cases  of  hypothecations  which 
come  within  the  jurisdiction  of  admiralty,  courts  of  admiralty  afford 
the  same  remedy  that  was  afforded  by  the  Roman  law,  and  in  such 
cases  equity  has  no  occasion  to  interfere.  In  cases  of  pledge,  our 
law  affords  no  judicial  remedy  whatever,  though  our  courts  of  law 
hold  that  a  pledgee  has  a  power  by  implication,  if  the  debt  is  not 
paid  when  it  becomes  due,  to  sell  the  pledge  on  giving  due  notice 
to  the  pledgor;  ^  and  this  remedy  sufficiently  answers  the  needs  of 
the  pledgee  in  the  great  majority  of  cases.^  In  cases  of  liens,  not 
only  does  our  law  afford  the  creditor  no  judicial  remedy,  but  our 


1  Pigot  V.  Cubley,  15  C.  B.  n.  s.  701. 

2  This  is  evident  from  the  dearth  of  direct  authority  upon  the  subject  of  judicial 
sales,  under  decrees  in  equity,  at  the  suit  of  pledgees.     See  i)ifra,  p.  197,  n.  3. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         1 97 

courts  hold  that  he  has  no  power  of  sale ;  ^  and  thus  there  is  held 
to  be  an  important  difference  between  pledges  and  liens;  nor  will 
this  be  a  cause  for  surprise  when  it  is  remembered  that  pledges  are 
always  made  by  the  owners  of  the  property  pledged,  while  liens  are 
created  by  the  law  alone,  and  that  the  implied  power  of  sale,  in  the 
case  of  a  pledge,  is  given  by  the  pledgor.  In  the  case  of  common 
law  hypothecations,  all  of  which,  as  has  been  seen,  are  created  by 
the  law  alone,  the  same  law  which  creates  them  also  provides  one 
or  more  remedies  for  their  enforcement,  and  these  remedies  have, 
except  under  special  circumstances,^  been  found  sufficient. 

Will  equity  afford  a  remedy  in  the  case  of  pledges  or  liens,  either 
to  the  creditor  or  the  owner  of  the  property,  when  a  judicial  remedy 
is  necessary?  In  respect  to  the  creditor,  it  should  be  premised 
that,  in  all  cases  where  a  creditor  has  real  security  for  the  payment 
of  his  debt,  whether  his  title  to  such  security  be  legal  or  equitable, 
and  whether  it  consist  of  ownership  of  the  property  which  consti- 
tutes the  security,  or  of  an  obligation  upon  it,  equity,  if  it  enforces 
the  security  at  all,  has  one  uniform  mode  of  doing  so,  unless  (as  in 
the  case  of  ordinary  mortgages)  such  a  mode  of  enforcing  the  se- 
curity is  thought  to  be  excluded  by  the  agreement  of  the  parties, 
namely,  the  Roman  mode  of  directing  a  sale  of  the  property,  and  a 
payment  of  the  debt  out  of  the  proceeds  of  the  sale.  Moreover, 
this  is  precisely  the  mode  of  enforcing  the  security  which  is  called 
for  by  every  consideration  of  justice  and  convenience  in  the  case 
of  pledges  and  liens.  It  would  seem  to  be  a  case,  therefore,  in 
which  there  is  a  legal  right  without  any  legal  remedy,  and  in  which 
equity  has  a  remedy  which  is  perfect  as  well  as  easy;  and  therefore 
equity  should  afford  such  remedy,  unless  a  power  of  sale  in  the 
creditor  be  thought  to  render  a  judicial  sale  unnecessary,  or  the 
amount  involved  be  too  small  to  warrant  the  interference  of  equity. 
Upon  authority,  the  question  must  be  answered  in  the  affirma- 
tive   in    respect    to    pledges,^  but  in  the   negative  in    respect   to 

1  Doane  v.  Russell,  3  Gray,  382;  Briggs  v.  B.  &  L.  R.  Co.,  6  Allen,  252  ;  Busfield  v. 
Wheeler,  14  Allen,  139,  143. 

2  For  an  instance  in  which  equity  will  direct  a  sale  of  land  to  satisfy  a  lien  thereon 
by  judgment  or  recognizance,  see  supra,  pp.  151-52. 

^  There  are  numberless  dicta  to  the  effect  stated  in  the  text,  and  that  such  is  the  law 
there  can  be  no  doubt  ;  and  yet,  strange  as  it  may  seem,  the  writer  has  not  found  a  single 
authority  directly  in  point.  Kent  says  (2  Com.  5S2)  the  pawnee  "may  file  a  bill  in 
chancery,  and  have  a  judicial  sale  under  a  regular  decree  of  foreclosure;  and  this  has 
frequently  been  dune  in  the  case  of  stock,  bonds,  plate,  and  other  chattels,  pledged  for 
the  payment  of  debt."  All  the  cases  which  he  cites,  however,  are  cases  of  bills  by 
pledgors  to  redeem  the  property  pledged. 


198        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

Hens.i  though   there    seems    to  be    no    good    reason    for   such    a 
distinction. 

There  is  not  hkely  to  be  any  occasion  for  equity  to  interfere  in 
favor  of  the  owner  of  the  property,  in  cases  of  pledges  or  liens, 
unless  there  is  a  controversy  between  him  and  the  creditor  as  to 
the  amount  of  the  debt;  for,  if  there  be  none,  the  former  should 
pay  the  debt,  and  then  he  can  recover  the  property  at  law.  If 
there  is  such  a  controversy,  however,  or  if  for  any  reason  the  credi- 
tor refuses  to  accept  payment,  the  owner  of  the  property  is  entitled 
to  file  a  bill  to  have  the  amount  of  the  debt  ascertained  and  de- 
clared, and  to  have  the  property  restored  to  him  on  his  paying  or 
tendering  such  amount.^  In  the  case  of  ordinary  mortgages,  indeed, 
a  tender  has  the  same  effect  as  actual  payment,  so  far  as  regards 
the  mortgaged  property.  If  made  on  the  day  named  in  the  mort- 
gage deed,  either  payment  or  tender  will  devest  the  title  of  the 
mortgagee,  and  revest  the  title  of  the  mortgagor,  while,  if  made 
after  that  day,  neither  will  have  any  legal  effect  upon  the  title  to 
the  mortgaged  property ;  and  the  reason  is  that  a  mortgage  is  a 
conveyance  of  the  legal  title  to  the  mortgagee,  subject  to  its  revest- 
ing in  the  mortgagor  on  performance  by  him  of  a  condition  subse- 
quent, namely,  making  payment  of  the  debt  on  the  day  named,  and 
only  in  that  event;  and,  though  actual  payment  alone  will  be  a 
performance  of  that  condition,  yet  a  tender  and  refusal  will  be  a 
good  excuse  for  non-performance,  and  so  will  have  the  same  effect 
as  performance.^  In  the  case  of  a  pledge  or  lien,  however,  while 
the  creditor  never  has  any  more  than  an  obligation  on  the  prop- 
erty, yet  that  obligation  is  an  absolute  and  unqualified  obligation 
to  pay  the  debt,  and  hence  nothing  short  of  an  actual  extinguish- 
ment of  the  debt  can  release  the  property;  and  a  tender  and  refusal, 
so  far  from  extinguishing  the  debt,  leaves  it  still  due  and  payable.^ 

1  T.  I.  W.  &  S.  Co.,  Lim.,  v.  P.  D.  Co.,  Lim.,  29  L.  J.  Ch.  714.  Though  the  decision 
in  this  case  is  in  point,  the  reason  given  for  it  is  so  extraordinary  (namely,  that  the  lien 
did  not  confer  upon  the  creditor  a  power  of  sale),  that  it  ought  not,  it  seems,  to  be 
regarded  as  settling  the  question.  Presumably,  it  was  because  the  creditor  could  not 
make  a  sale  by  his  own  authority  that  he  applied  to  the  court  for  a  judicial  sale. 

2  Demaiidray  v.  Metcalf,  Ch.  Prec.  419;  Kemp  v.  Westbrook,  I  Ves.  278;  Vander- 
zee  V.  Willis,  3  Bro.  C.  C.  21. 

8  "If  A  borroweth  100  £  of  B,  and  after  mortgageth  land  to  B,  upon  condition  for 
payment  thereof:  if  A  tender  the  money  to  B,  and  he  refuseth  it,  A  may  enter  into  the 
land,  and  the  land  is  freed  forever  of  the  condition,  but  yet  the  debv  remaineth,  and 
may  be  recovered  by  action  of  debt."     Co.  Litt.  209  b. 

4  See  preceding  note.  To  be  sure,  if  the  creditor  sue  the  debtor  for  the  debt,  the 
latter  may  plead  the  tender  and  refusal,  but,  to  make  his  plea  good,  he  must  also  allege. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         199 

A  pledge,  hypothecation,  or  lien,  as  has  been  seen,  is  generally 
accessory,  collateral,  or  incidental  to  a  personal  obligation  by  which 
the  debt  is  created,  and  which  therefore  constitutes  the  principal 
obligation.  A  real  obligation  may,  however,  itself  create  a  debt 
and  so  be  a  principal  obligation;  and,  in  that  case,  if  there  be  also 
a  personal  obligation  on  the  part  of  the  owner  of  the  property  to 
pay  the  debt,  the  latter  will  be  merely  accessory  to  the  real  obliga- 
tion. There  are  in  English  law  two  real  obligations  in  particular 
which  are  always  principal  obligations,  namely,  rent  and  predial 
tithe.  In  each  of  these,  the  property  bound  is  land;  and  yet  in 
each  it  is  not  the  corpus  of  the  land,  but  its  fruits,  or  the  income 
produced  by  it,  that  is  bound.  Each,  therefore,  according  to 
the  nomenclature  of  the  law  of  Scotland,  is  a  debitiim  fructuuin, — 
not  a  dcbitiim  fundi.  Hence,  each  is  payable  periodically;  and 
hence  also,  when  a  payment  becomes  due,  it  becomes  a  personal 
obligation  of  the  occupier  of  the  land,  who  has  received  the  fruits 
out  of  which  the  rent  or  tithe  in  question  was  payable.  The  right 
to  receive  either  rent  or  tithe  in  future  is  real  estate,  and  is  trans- 
ferable, and,  upon  the  death  of  its  owner,  it  goes  to  his  heir  in  the 
case  of  rent,  and  to  his  successor  in  the  case  of  tithe ;  but  the  mo- 
ment that  a  payment  becomes  due,  its  character  changes,  and  it 
becomes  personal  estate  and  a  chose  en  action,  and  consequently  is 
not  assignable,  and  on  the  death  of  its  owner  it  goes  to  his  execu- 
tor or  administrator.  Hence,  when  an  owner  of  rent  or  of  tithe 
dies,  his  right  to  receive  future  payments  goes  in  one  direction, 
while  the  right  to  receive  any  payments  that  may  be  in  arrear  goes 
in  another  direction. 

Rent  is  created  by  the  act  of  the  owner  of  the  land  out  of  which 
the  rent  issues.  The  act  by  which  a  rent  is  created  is  either  a  res- 
ervation or  a  grant.  A  rent  is  created  by  a  reservation  when  the 
owner  of  land  grants  it  to  another  person  for  years,  for  life,  in  tail, 
or  in  fee,  reserving  to  himself  a  rent  out  of  the  same,  the  estate  in 
the  rent  reserved  being  generally  of  the  same  duration  as  that 
granted  in  the  land.  A  rent  is  created  by  grant  when  the  owner 
of  land  grants  a  rent  out  of  the  same  to  another  person  for  years, 
for  life,  in  tail,  or  in  fee. 

At  common  law,  there  was  a  sharp  line  of  demarcation  between 
a  rent  reserved  and  a  rent  granted,      i.    Every  ordinary  grant  of 


that  he  has  always  been  and  still  is  ready  and  willing  to  pay  the  money  so  tendered, 
and  he  must  bring  the  same  into  court,  ready  to  be  paid  to  the  plaintiff,  if  he  will 
accept  it. 


200        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

land  at  common  law  created  between  the  grantor  and  the  grantee 
the  feudal  relation  of  lord  and  tenant,  the  latter  holding  the  land 
from  the  former,  and  the  former  having  a  reversion,  or  at  least  a 
feudal  seigniory,  in  the  land  ;  and  hence  every  rent  reserved  upon 
such  a  grant  was  a  rent  payable  by  a  feudal  tenant  to  his  feudal 
lord.  2.  Though  the  parties  to  that  relation  were  liable  at  any  time 
to  change,  yet  the  relation  itself  was  permanent,  i.e.,  as  permanent 
as  the  estate  granted  in  the  land.  3.  The  rent  was  in  the  nature 
of  a  feudal  service,  to  be  rendered  by  the  tenant  as  such  to  the  lord 
as  such ;  and  hence  it  was  necessary,  not  only  that  the  obligation 
to  pay  the  rent  should  follow  the  land  into  the  hands  of  any  new 
tenant  (which  it  of  course  would  do,  the  land  being  the  debtor),  but 
that  the  right  to  receive  the  rent  should  follow  the  reversion  or 
seigniory  into  the  hands  of  any  new  lord  ;  and  this  latter  object  the 
law  accomplished  by  annexing  the  right  to  receive  the  rent  to  the 
reversion  or  seigniory  as  an  incident  or  accessory.  In  short,  as 
the  obligation  to  pay  a  rent  reserved  always  followed  the  land  out  of 
which  it  issued,  so  the  right  to  receive  it  always  followed  the  rever- 
sion or  seigniory  to  which  it  was  annexed.  It  is  true  that  the  lord 
might  at  any  time  sever  the  rent  from  the  reversion  or  seigniory 
by  granting  away  either  and  retaining  the  other,  or  by  granting 
away  each  to  a  different  person  ;  but  by  so  doing  he  changed  the 
nature  of  the  rent  from  that  of  a  rent  reserved  to  that  of  a  rent 
granted.  4.  A  right  to  distrain  was  a  legal  incident  of  every  feu- 
dal service,  and  therefore  of  every  rent  which  was  in  the  nature  of 
a  feudal  service.  5.  As  land  could  be  conveyed  at  common  law, 
even  in  fee,  without  a  deed  (/.  e.,  by  livery  of  seisin),  so,  on  a  convey- 
ance of  land,  a  rent  could  be  reserved,  even  in  fee,  without  a  deed. 

A  grant  of  a  rent,  on  the  other  hand,  neither  created  nor  accom- 
panied any  relation  between  the  grantor  and  the  grantee  ;  it  simply 
created  the  relation  of  obligor  and  obligee  between  the  land  out  of 
which  the  rent  was  to  issue  and  the  grantee  of  the  rent.  The  rela- 
tion of  the  latter  to  the  land  was  simply  that  of  a  creditor,  holding 
the  land  as  security  for  the  payment  of  his  debt.  He  had,  there- 
fore, no  right  to  distrain,  unless  such  a  right  was  expressly  given 
in  the  grant.     Moreover,  a  rent  could  be  granted  only  by  deed. 

Such  were  the  distinctions  between  a  rent  reserved  and  a  rent 
granted  at  common  law.  An  anomaly  was,  however,  introduced  by 
the  statute  of  Quia  Emptores  ;  ^  for  it  was  a  consequence  of  that  stat- 

1  18  Edw.  I.  Stat.  I,  c.  I. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        20I 

utc  that  a  grant  of  land  in  fee  no  longer  created  the  relation  of  lord 
and  tenant  between  the  grantor  and  the  grantee,  nor  left  any  rever- 
sion or  seignior)'  in  the  grantor,  but  operated  simply  as  an  assign- 
ment of  the  grantor's  tenancy  to  the  grantee ;  in  short,  that  such 
a  grant  created  no  new  feudal  relation,  but  simply  changed  one  of 
the  parties  to  an  old  one.  It  was  still  possible,  notwithstanding 
the  statute,  upon  a  grant  of  land  in  fee,  for  the  grantor  to  reserve  a 
rent,  but  the  nature  of  a  rent  so  reserved  was  changed  by  the  stat- 
ute to  that  of  a  rent  granted.  Indeed,  a  grant  of  land  in  fee,  re- 
serving a  rent,  has  had,  since  the  statute,  the  same  effect  that  two 
grants  would  have,  namely,  a  grant  of  the  land,  and  then  a  grant  of 
the  rent  by  the  grantee  of  the  land. 

The  payment  of  either  a  rent  reserved  or  a  rent  granted  may  be 
secured  by  the  personal  covenant  of  the  grantee  of  the  land  in  the 
one  case,  and  of  the  grantor  of  the  rent  in  the  other,  and  a  rent 
reserved  commonly  is  so  secured.  Such  a  covenant,  as  has  been 
seen,  is  accessory  to  the  obligation  of  the  land,  which  is  the 
principal  obligation. 

In  order  to  understand  to  what  extent  it  may  be  necessary  for 
equity  to  assume  jurisdiction  over  rents,  it  is  necessary  first  to 
ascertain  what  remedies  the  law  provides  for  the  recovery  of  rents, 
and  to  what  extent  such  remedies  are  available  and  adequate. 

1.  At  common  law,  whenever  any  person  to  whom  a  freehold 
rent  was  payable  had  become  seised  of  it,  and  was  afterwards  dis- 
seised, he  was  entitled  to  bring  a  writ  of  assize  to  recover  it;  but 
that  remedy  was  never  applicable  to  a  rent  reserved  on  a  lease  for 
years,  or  to  a  rent  granted  for  a  term  of  years,  and  the  remedy 
itself  no  longer  exists. 

2.  Upon  a  rent  granted,  a  writ  of  annuity  would  lie  at  common 
law  to  compel  its  payment,  but  not  upon  a  rent  reserved.  The 
reason  why  that  writ  would  lie  upon  a  rent  granted  was  that  a 
grant  of  a  rent  differed  from  a  grant  of  an  annuity  only  in  being 
something  more,  and  hence  every  grant  of  a  rent  amounted  to  the 
grant  of  an  annuity,  on  the  principle  that  onine  niajus  hi  se  minus 
continet.  For  the  same  reason,  if  a  grant  of  a  rent  failed  as  such, 
e.g.,  because  the  grantor  had  no  title  to  the  land  out  of  which  the 
rent  was  to  issue,  yet  the  grant  might  be  good  as  a  grant  of  an 
annuity.  The  same  grant  could  not,  however,  operate  both  as  a 
grant  of  a  rent  and  as  a  grant  of  an  annuity;  and  while,  therefore, 
the  grantee  of  a  rent  alwa\-s  had  the  option  of  treating  the  grant 
as  the  grant  of  an  annuity,  yet,  if  he  once  elected  so  to  treat  it,  he 


202         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

could  not  afterwards  treat  it  as  a  rent.  Moreover,  as  an  annuity 
was  a  personal  obligation,  while  a  rent  was  a  real  obligation,  a  con- 
sequence of  an  election  by  the  grantee  of  a  rent  to  treat  the  grant 
as  a  grant  of  an  annuity  was  that  the  land  was  discharged,  and  the 
grantee  had  to  look  to  the  personal  liability  of  the  grantor  alone. 

From  what  has  been  said,  the  reason  is  obvious  why  a  writ  of 
annuity  would  never  lie  upon  a  rent  reserved;  for,  as  a  reservation 
of  a  rent  is  the  act  of  the  grantor  of  the  land  alone,  it  would  be 
absurd  to  say  that  it  can  operate  as  a  grant  of  an  annuity  by  the 
grantee  of  the  land  ;  and  yet  it  must  so  operate  if  a  writ  of  annuity 
is  to  lie  for  recovering  it.  It  would  be  equally  absurd  to  say  that 
the  grantor  of  the  land  can  by  his  own  act  impose  a  personal 
obligation  upon  the  grantee  of  the  land. 

A  writ  of  annuity,  however,  like  a  writ  of  assize,  has  ceased  to 
be  an  available  remedy. 

3.  If  the  grantee  of  land,  upon  the  grant  to  whom  a  rent  is  re- 
served, or  the  grantor  of  a  rent,  covenant  to  pay  the  rent,  of  course 
the  covenantee  can  sue  upon  the  covenant,  if  the  rent  is  not  paid. 
The  value  of  such  a  covenant,  however,  in  case  of  a  rent  granted, 
or  in  case  of  a  rent  reserved  upon  a  grant  of  land  in  fee,  depends 
much  upon  the  question  whether  the  covenant  runs  with  the  land, 
—  a  question  which  will  be  considered  hereafter.^ 

4.  An  action  of  debt  would  always  lie  for  the  recovery  of  rent, 
either  against  the  grantee  of  land,  on  the  grant  to  whom  the  rent 
was  reserved,  or  against  the  grantor  of  a  rent,  or  against  the 
assignee  of  either,  so  long  as  he  held  the  land  as  such  assignee. 
In  the  case,  however,  of  a  freehold  rent,  this  action  was  of  little 
value;  as  it  would  not  lie  until  the  last  payment  of  the  rent  became 
due. 

5.  The  remedy  by  way  of  distress  was  available  in  all  cases  of 
rents  reserved,  except  where  (since  the  statute  of  Qtiia  Emptores^ 
the  reservation  was  upon  a  grant  of  the  land  in  fee,  and  in  all  cases 
of  rents  granted,  and  of  rents  reserved  upon  grants  of  land  in  fee, 
provided  a  right  to  distrain  was  expressly  given. 

6.  In  all  cases  of  rents  reserved,  even  upon  grants  of  land  in  fee, 
the  estate  granted  could  be  made  to  depend,  by  means  of  a  con- 
dition subsequent,  upon  payment  of  the  rent,  /.  e.,  it  could  be  pro- 
vided that,  in  case  of  failure  to  pay  the  rent,  the  estate  of  the 
grantee  in  the  land  should  cease,  and  the  title  to  the  land  revest  in 

^  See  Van  Rensselaer  v.  Hays,  19  N.  Y.  68. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         203 

the  grantor.  This  remedy  was  of  less  vahic,  however,  than  at  first 
sight  it  seems  to  be  ;  for,  ist,  the  grantor  could  recover  possession  of 
the  land,  against  the  will  of  the  grantee,  only  by  an  action  of  eject- 
ment; 2dly,  as  such  a  condition  worked  a  forfeiture  of  the  grant,  it 
was  regarded  by  the  law  with  disfavor,  and  hence  the  enforcement 
of  it  was  surrounded  by  so  many  difficulties  that  it  became  well- 
nigh  impracticable;^  3dly,  at  any  time  before  the  grantee  was 
actually  dispossessed  of  the  land,  he  could  obtain  from  a  court  of 
equity  an  injunction  against  any  further  proceedings  at  law,  on 
paying  the  rent  in  arrear,  with  interest  and  costs;  and,  4thly,  even 
after  he  was  dispossessed  by  means  of  an  action  of  ejectment,  a 
court  of  equity  would  not  only  restore  him  to  the  possession  at 
any  time  on  the  terms  just  stated,  but  require  the  grantor  to  ac- 
count rigorously  for  the  rents  and  profits  during  all  the  time  that 
he  had  held  the  possession.^  Moreover,  such  a  condition  could 
never  be  made  in  case  of  a  rent  granted,  as  there  was  in  that  case 
no  grant  of  the  land  to  which  the  condition  could  be  annexed. 

7.  A  grantor  of  a  rent,^  however,  as  well  as  a  grantor  of  land, 
reserving  a  rent,*  could  couple  with  the  grant  or  the  reservation  of 

1  Duppaz/.  Mayo,  i  Wms.  Saund.  282,  287,  n.  16.  In  Jackson  z/.  Harrison,  17  Johns. 
66,  which  was  an  action  of  ejectment  by  a  landlord  against  a  tenant  to  enforce  a  for- 
feiture for  non-payment  of  rent,  the  plaintiff  was  defeated  because  he  demanded  the 
rent  in  the  afternoon  of  the  day  on  which  it  became  due,  instead  of  demanding  it  just 
before  sunset. 

-  The  statute  of  4  Geo.  II.  c.  28,  s.  2,  contains  the  following  recital:  "  Whereas 
great  inconveniences  do  frequently  happen  to  lessors  and  landlords,  in  cases  of  re-entry 
for  non-payment  of  rent,  by  reason  of  the  many  niceties  that  attend  re-entries  at  common 
law  ;  and  for  as  much  as,  when  a  legal  re-entry  is  made,  the  landlord  or  lessor  must  be 
at  the  expense,  charge,  and  delay  of  recovering  in  ejectment  before  he  can  obtain  the 
actual  possession  of  the  demised  premises ;  and  it  often  happens  that,  after  such  re- 
entry made,  the  lessee  or  his  assignee,  upon  one  or  more  bills  filed  in  the  court  of 
equity,  not  only  holds  out  the  lessor  or  landlord  by  an  injunction  from  recovering  the 
possession,  but  likewise,  pending  the  said  suit,  do  run  much  more  in  arrear,  without 
giving  any  security  for  the  rents  due,  when  the  said  re-entry  was  made,  or  which  shall 
or  do  afterwards  incur." 

3  Jemott  7'.  Cowley,  i  Wms.  Saund.  112. 

•»  "  Where  a  feoffment  is  made  of  certain  lands,  reserving  a  certain  rent,  etc.,  upon 
such  condition,  that,  if  the  rent  be  behind,  it  shall  be  lawful  for  the  feoffor  and  his  heirs 
to  enter,  and  to  hold  the  land  until  he  be  satisfied  or  paid  the  rent  behind,  etc.,  in  this 
cas",  if  the  rent  be  behind,  and  the  feoffor  and  his  heirs  enter,  the  feoffee  is  not  alto- 
gether e.\cluded  from  this,  but  the  feoffor  shall  have  and  hold  the  land,  and  thereof  take 
the  profits,  until  he  be  satisfied  of  the  rent  behind ;  and  when  he  is  satisfied,  then  may 
the  feoffee  re-enter  into  the  same  land,  and  hold  it  as  he  held  it  before.  For  in  this 
case,  the  feoffor  shall  have  the  land  —  but  in  manner  as  for  a  distress,  until  he  be  satis- 
fied of  the  rent,  etc.,  though  he  take  the  profits  in  the  mean  time  to  his  own  use,"  etc. 
Litt.,  s.  327.  "  The  case  of  Littleton  cannot  be  maintained  by  reason,  but  only  by  the 
authority  of  the  author."    Per  Kelyng,  J.,  in  Jemott  v.  Cowley,  T.  Raym.  136. 


204        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  rent  a  grant  or  reservation  of  the  right,  in  case  of  failure  to  pay 
the  rent,  to  enter  upon  the  land,  and  retain  possession  of  it  until,  by- 
receipt  of  the  rents  and  profits,  all  arrears  of  the  rent  were  paid ; 
and,  by  virtue  of  this  right,  the  grantee  of  the  rent,  or  the  grantor 
of  the  land,  or  the  assignee  of  either,  could  recover  possession  of 
the  land  by  ejectment.  Moreover,  as  such  a  right  did  not  operate 
by  way  of  forfeiture,  of  course  a  court  of  equity  would  not  interfere 
with  its  exercise.  If,  however,  the  right  granted  or  reserved  was 
to  enter  upon  the  land,  and  take  the  rents  and  profits  thereof  to  his 
ozvn  use,  until  all  arrears  of  rent  were  paid  by  the  grantor  of  the 
rent  or  the  grantee  of  the  land,  the  right  would  operate  by  way  of 
forfeiture,  —  not  indeed  of  the  land,  but  of  its  rents  and  profits  be- 
tween the  time  of  entry  and  the  time  of  payment  of  the  arrears  of 
rent;  and  hence  equity  would  relieve  against  the  forfeiture.^  Such 
was  understood  by  Littleton  to  be  the  nature  of  the  right  in  the 
case  put  by  him  in  section  327  of  his  Tenures.^ 

It  may  be  added  that,  at  common  law,  an  assignee  of  a  rent, 
whether  it  were  a  rent  created  by  reservation  or  by  grant,  was  not 
entitled  to  any  of  the  foregoing  remedies,  until  the  tenant  or  owner 
of  the  land  had  attorned  to  him.  The  necessity  of  attornment  was, 
however,  long  since  abolished. 

Of  the  seven  remedies  enumerated  above,  the  first  and  second, 
as  has  been  seen,  no  longer  exist;  the  third  and  fourth  are  merely 
personal  remedies,  —  not  remedies  against  the  land,  —  and  for  that 
reason  alone  are  entirely  inadequate,  being  of  little  value  except 
against  a  solvent  defendant ;  the  fifth  is  a  remedy,  not  against  the 
land  bound  for  the  rent,  but  against  movable  property  found  on 
the  land ;  the  sixth  is  a  remedy  against  the  land,  not  by  way  of 
obtaining  payment  of  the  rent,  but  by  way  of  forfeiture  for  its  non- 
payment; and  the  seventh  is  a  remedy  against  the  land,  as  a 
means  of  obtaining  payment  of  the  rent.  The  last  remedy,  how- 
ever, is  one  which  is  seldom  provided  for,  and  with  which  few  per- 
sons are  familiar.  It  is  a  remedy  too  which  can  be  enforced  only 
by  an  action  of  ejectment,  and  which  will  eventually  involve  an 
accounting  in  equity  by  the  person  who  avails  himself  of  it,  unless 
the  parties  can  agree;  and  it  cannot  therefore  be  deemed  a  very 
satisfactory  remedy. 

That  none  of  the  foregoing  remedies  have  been  regarded  as 
fully  adequate  is  evident  from  the  legislation  which  has  been 
enacted,  both  in  England  and  in  this  country,  upon  the  subject 

1  Co.  Litt.  203,  and  Butler's  note.  ^  Supra,  p.  203,  n.  4. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         205 

of  remedies  for  the  recovery  of  rents.  The  aim  of  such  legislation 
has  been  materially  different,  however,  in  the  two  countries.  In 
England,  legislation  has  been  directed  mainly  to  the  im[)rovement 
of  two  of  the  old  remedies,  namely,  that  by  way  of  distress,  and 
that  by  way  of  forfeiture.  The  former  of  these  remedies  seems 
always  to  have  been  the  favorite  one  in  England,  as  well  with  the 
Legislature  as  with  landlords,  and  the  constant  aim  has  been  to 
render  it  more  efficient  and  available.'  The  remedy  by  way  of 
forfeiture  has  also  been  materially  improved  in  England,  in  the 
interest  of  landlords,  by  rendering  its  prosecution  less  difficult,  by 
requiring  tenants,  as  a  condition  of  obtaining  an  injunction,  to  pay 
all  arrears  of  rent  into  court,  thus  removing  from  them  the  tempta- 
tion to  resort  to  equity  for  the  mere  purpose  of  delay,  and  by 
disabling  tenants  from  resorting  to  equity,  except  within  six 
months  after  they  are  dispossessed.- 

In  this  country,  on  the  other  hand,  the  remedy  by  way  of  dis- 
tress has  not  generally  been  regarded  with  favor;  tenants  have 
claimed  that  it  savored  of  feudal  bondage  and  oppression  ;  the 
public  have  claimed  that  it  favored  one  class  of  creditors  at  the 
expense  of  all  others ;  in  some  of  our  States  it  has  never  existed ; 
in  others  it  has  been  abolished ;  and  it  is  believed  that  the  ten- 
dency is  to  abolish  it  in  those  States  in  which  it  now  exists.'^     At 


^  See  17  Car.  II.  c.  7  (reciting  tiiat  "  tlie  ordinary  remedy  for  arrearages  of  rents 
is  by  distress  upon  the  lands  chargeable  therewith;  and  yet  nevertheless  by  reason 
of  the  intricate  and  dilatory  proceedings  upon  replevins  that  remedy  is  become 
ineffectual  ") ;  2  \Vm.  &  M.  c.  5  (reciting  that  "  the  most  ordinary  and  ready  way  for 
recovery  of  arrears  of  rent  is  by  distress") ;  8  Anne,  c.  14 ;  4  Geo.  II.  c.  28,  s.  5  (re- 
citing that  "the  remedy  for  recovering  rents  seek,  rents  of  assize,  and  chief  rents,  are 
tedious  and  difficult,"  and  enacting  that  owners  of  rents  seek,  rents  of  assize,  and  chief 
rents  shall  have  the  like  remedy  by  distress  as  owners  of  rents  reserved  upon  leases)  ; 
II  Geo.  II.  c.  19,  ss.  i-io,  19-23. 

2  4  Geo.  II.  c.  28,  ss.  2,  3,  4. 

8  Lord  Kames  ( Historical  Law  Tracts,  4th  ed.,  pp.  169,  170),  writing  about  the  middle 
of  the  last  century,  said  :  "  In  the  infancy  of  government,  shorter  methods  are  indulged 
to  come  at  right  than  afterward  when,  under  a  government  long  settled,  the  obstinacy 
and  ferocity  of  men  are  subdued,  and  ready  obedience  is  paid  to  established  laws  and 
customs.  l>y  the  Roman  law,  a  creditor  could  sell  his  pledge  at  short  hand.  With  us, 
of  old,  a  creditor  could  even  take  a  pledge  at  short  hand,  and,  which  was  worse  than 
either,  it  was  lawful  for  a  man  to  take  revenge  at  his  own  hand  for  injuries  done  him. 
None  of  these  things,  it  is  presumed,  are  permitted  at  present  in  any  civilized  country, 
England  e.xcepted,  where  the  ancient  privilege  of  forcing  payment  at  short  hand, 
competent  to  the  landlord,  and  to  the  creditor  of  a  rent  charge,  is  still  in  force."  In 
Farley  v.  Craig,  15  N.  J.  191,  213,  Ford,  J-  (sitting  in  a  State  in  which  landlords  have 
always  been  entitled  to  distrain  for  non-payment  of  rent),  said :  "  By  distraining,  a  man 
carves  out  justice,  without  judge  or  jury,  for  himself ;  and  it  is  well  enough  to  have  the 


206        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  same  time,  there  has  been  a  tendency  in  this  country  not  to 
regard  a  re-entry  by  a  landlord  for  non-payment  of  rent  as  a  for- 
feiture, but  rather  as  a  rightful  termination  by  him  of  the  relation 
existing  between  himself  and  the  tenant  for  the  default  of  the 
latter;  and  a  justification  of  this  tendency  may  be  found  in  the 
fact  that  the  only  rents  with  which  people  have  hitherto  been 
familiar  in  this  country  are  those  which  are  reserved  upon  leases 
for  short  terms,  —  which  constitute  the  only  recompense  made  by 
the  tenant  to  the  landlord  for  the  land,  —  and  which  consequently 
generally  represent  the  full  value  of  the  use  of  the  land.  Hence, 
it  has  been  the  general  aim  of  legislation  in  this  country  to  convert 
the  landlord's  remedy  by  way  of  re-entry  into  a  universal  remedy 
for  non-payment  of  rent,  ist,  by  providing  very  summary  and 
inexpensive  proceedings  for  its  enforcement;  2dly,  by  treating 
the  re-entry  and  resumption  of  possession  by  the  landlord,  not  as 
a  forfeiture,  but  as  a  statutory  termination  of  the  lease,  and  there- 
fore making  such  resumed  possession  unimpeachable  in  equit}'; 
3dly,  by  giving  every  landlord  a  right  of  re-entry  for  non-payment 
of  rent,  whether  any  condition  of  re-entry  be  inserted  in  the  lease 
or  not.^  It  is  believed,  moreover,  that  the  remedy  thus  provided 
is  now  more  resorted  to  than  all  other  remedies  put  together, 
especially  in  those  States  where  a  right  to  distrain  for  non- 
payment of  rent  does  not  exist. 

option;  but  no  prudent  man  would  use  it  without  a  great  emergency,  —  much  less 
have  such  an  odious  measure  forced  on  him  as  his  only  remedy.  It  is  always  harsh  ; 
the  blow  comes  without  a  word,  on  the  tenant's  property,  like  a  bolt  from  the  sky. 
It  is  the  tiger's  process  in  hunger.  Tenants  commonly  elude  it  if  they  can  by  fraud 
or  guile,  and  sometimes  resist  it  by  direct  violence,  such  as  it  seems  was  preconcerted 
in  this  case,  and  in  full  readiness,  if  a  distress  had  been  attempted." 

1  The  legislation  referred  to  in  the  text  had  its  origin  in  the  English  statute  of  ii 
Geo.  II.  c.  19,  s.  16,  which  (after  reciting  that  "  landlords  are  often  great  sufferers  by 
tenants  running  away  in  arrear,  and  not  only  suffering  the  demised  premises  to  lie 
uncultivated  without  any  distress  thereon,  whereby  their  landlords  or  lessors  might 
be  satisfied  for  the  rent  arrear,  but  also  refusing  to  deliver  up  the  possession  of  the 
demised  premises,  whereby  the  landlords  are  put  to  the  expense  and  delay  of  recovery 
in  ejectment")  provides  that  two  or  more  justices  of  the  peace  may  put  landlords  in 
possession  of  leased  land  in  a  summary  manner,  (a)  where  the  rent  is  a  rack-rent,  or  a 
rent  of  full  three  fourths  of  the  yearly  value  of  the  premises;  (/-')  where  a  year's  rent 
is  in  arrear;  [c)  where  the  tenant  has  deserted  the  premises,  and  left  the  same  uncul- 
tivated or  unoccupied,  so  as  no  sufificient  distress  can  be  had  to  countervail  the  arrears 
of  rent ;  and  [d)  where  by  the  terms  of  the  lease  the  landlord  is  entitled  to  re-enter  for 
non-payment  of  rent  (Pilton,  Ex  parte,  i  B.  &  Aid.  369)  ;  and  that,  upon  the  landlord's 
being  so  ])ut  in  possession,  the  lease  shall  become  void.  By  57  Geo.  III.  c.  52,  the 
foregoing  statute  was  extended  to  cases  where  only  one  half  a  year's  rent  was  in 
arrear,  and  where  the  landlord  had  no  right  to  re-enter. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         20/ 

Such  being  tlic  remedies  furnished  by  courts  of  law  for  the  non- 
payment of  rent,  the  question  arises  whether  they  are  available  and 
adequate  in  all  cases  tliat  can  happen.  In  answering  this  question, 
it  will  be  convenient  to  distinguish  rents  into  three  classes,  with 
reference  to  the  different  purposes  for  which  they  may  be  created. 

First,  when  an  ordinary  lease  is  made,  reserving  a  rent,  the  object 
of  the  lessor  is  simply  to  obtain  an  income  from  property  which  he 
does  not  wish  himself  to  occupy,  i.  e.,  from  propert}'  which  he  holds 
as  an  investment,  while  the  object  of  the  lessee  is  to  obtain  the 
possession  and  enjoyment  of  property  which  he  is  unable  to  own, 
or  which  he  does  not  wish  to  own. 

Sccoiidl)',  when  land,  instead  of  being  sold  for  a  sum  in  gross,  is 
granted  in  fee,  or  for  a  long  term  of  years,  with  a  reservation  of  an 
annual  rent,  such  rent  constituting  the  price  to  be  paid  for  the 
land,  the  object  of  the  grantor  is  to  convert  his  land  into  another 
kind  of  investment,  —  an  investment  which  will  be  as  permanent 
as  land  and  much  more  secure,  which  will  produce  a  fixed  amount 
of  income,  and  which  will  cost  its  owner  the  least  possible  care, 
anxiety,  and  trouble.  An  owner  of  land,  moreover,  may  not  be 
able  to  sell  it  for  a  sum  in  gross,  except  at  a  great  sacrifice,  and 
therefore,  unless  he  submit  to  such  sacrifice,  he  may  have  to 
choose  between  holding  the  land  indefinitely  and  disposing  of  it 
in  the  manner  just  indicated,  i.e.,  between  making  the  land  pro- 
duce a  regular  income,  and  suffering  it  to  cause  a  regular  outgo. 
The  object  of  the  grantee,  on  the  other  hand,  is  to  obtain  the  land 
on  credit,  either  because  he  is  unable  to  pay  for  it  at  once,  or  be- 
cause he  thinks  he  can  put  his  money  to  a  better  use  than  that  of 
paying  for  the  land.  Moreover,  if  he  obtains  the  land  with  a  view 
to  improving  it,  and  thus  increasing  its  value,  a  perpetual  ground 
rent  ought  to  answer  his  purpose  much  better  than  a  mortgage; 
for,  (rt),  a  mortgagor  incurs  the  constant  or  oft-recurring  liability 
of  being  called  upon  to  pay  the  principal ;  (^),  the  negotiation  of 
every  new  mortgage  loan  is  attended  with  a  considerable  expense ; 
{c),  so  great  is  now  the  desire  for  permanent  and  secure  invest- 
ments, which  will  produce  a  fixed  income,  that  a  well  secured 
perpetual  ground  rent  of  one  thousand  dollars  (^e.g:^  ought  mate- 
rially to  exceed  in  value  any  sum  of  money  that  can  be  borrowed 
temporarily  at  an  interest  of  one  thousand  dollars  per  annum. 

Thirdly,  when  a  rent  is  granted,  without  any  grant  of  the  land 
out  of  which  the  rent  is  to  issue,  the  object  of  the  grantor  is  to 
raise  money  on  the  security  of  the  land ;  and  he  grants  a  rent, 


208        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

instead  of  giving  a  mortgage,  because  he  thinks  he  can  thus  obtain 
better  terms  in  respect  either  to  the  rate  of  interest  or  to  the  mode 
of  payment.  The  mode  of  payment  in  particular,  namely,  by  uni- 
form annual  instalments,  may  be  an  attraction  to  him,  especially  if 
the  instalments  are  liable  to  cease  at  any  moment  by  the  dropping 
of  a  life.  It  is  the  object  of  the  grantee,  however,  that  is  the  chief 
cause  of  the  transaction's  taking  the  shape  it  does;  for  he  wishes 
to  convert  a  sum  of  money  which  he  has  in  hand  into  an  annuity, 
commonly  for  his  own  life,  and  thus  to  increase  his  annual  income 
by  sinking  his  principal.  In  such  a  transaction,  it  is  obvious  that 
security  should  be  the  prime  consideration  with  the  grantee;  for, 
on  the  one  hand,  he  parts  with  the  price  of  the  annuity  imme- 
diately, while,  on  the  other  hand,  he  has  to  trust  the  grantor 
during  the  whole  period  that  the  annuity  is  to  run;  and  in  many 
cases  the  annuity  will  constitute  the  grantee's  only  means  of  liveli- 
hood. If,  therefore,  the  annuity  takes  the  shape  of  a  grant  of  a 
rent,  that  is  merely  for  the  sake  of  security;  and  hence  it  is  a 
mere  accident.  The  essence  of  the  transaction  is  an  agreement  to 
pay  a  fixed  sum  annually,  for  the  period  of  time  agreed  upon,  in 
consideration  of  a  sum  in  gross  paid  immediately. 

For  non-payment  of  rents  of  the  first  class,  the  remedies  pro- 
vided by  law  seem  to  be  all  that  can  be  asked  for,  especially  in 
places  where  the  remedy  by  distress  is  given,  in  addition  to  the 
other  remedies  before  enumerated  ;  and  even  where  that  remedy  is 
withheld,  a  landlord  who  can  summarily  dispossess  a  tenant  who 
fails  to  pay  his  rent  has  not  much  to  complain  of.  If  it  be  said 
that  this  is  no  remedy  for  rent  already  due,  it  may  be  answered, 
ist,  that  indirectly  it  is  a  very  powerful  remedy;  2dly,  that 
no  court  can  give  an  effective  remedy  for  an  unsecured  debt 
against  a  debtor  with  no  assets.  If,  indeed,  the  tenant  does  not 
pay  for  the  land  entirely  by  an  annual  rent,  but  partly  by  a  rent 
and  partly  by  a  fine  {i.  e.,  a  sum  in  gross  paid  at  the  commence- 
ment of  the  lease),  —  a  thing  which  is  very  common  in  England,^ 
though  very  uncommon  in  this  country,  —  a  difficulty  arises  ;  for 
in  such  a  case,  if  the  law  permits  the  tenant  to  be  summarily  dis- 
possessed for  non-payment  of  rent,  and  disables  him  from  seeking 
relief  in  equity,  it  is  unjust  to  the  tenant,  as  he  in  truth  loses 
his  lease  by  way  of  forfeiture ;  and,  on  the  other  hand,  if  the  law 
does  justice  to  the  tenant,  it  deprives  the  landlord  of  his  summary 

1  Compare  note  i,  p.  206. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         209 

remedy.  In  this  latter  case,  therefore,  equity  may  be  called  upon 
to  interfere  in  the  landlord's  favor,  especially  in  places  where  he  is 
not  allowed  to  distrain. 

The  cases  in  which  reservations  of  rents  of  the  second  class  will 
be  found  desirable  are  chiefly  those  in  which  vacant  land  in  or  near 
cities  and  large  towns  is  granted  for  the  purpose  of  being  built 
upon.  In  such  cases,  grants  of  land  in  consideration  of  rents 
reserved  will  be  likely  to  promote  the  interests,  not  only  of  the 
parties  to  the  transaction,  but  of  the  public  as  well,  and  therefore 
they  should  receive  all  the  support  and  encouragement  that  the 
law  can  afford  them. 

The  practice  of  granting  land  in  fee  for  building  purposes,  in 
consideration  of  a  rent  reserved,  has  never,  it  is  believed,  prevailed 
in  England  to  any  great  extent;^  nor  has  it  in  our  States,  with  the 
exception  of  Pennsylvania.  In  that  State,  however,  as  well  as  in 
Scotland,  this  practice  has  prevailed,  and  still  prevails  very  exten- 
sively. It  is  a  significant  fact,  however,  that  in  Pennsylvania  the 
statute  of  Quia  Emptores  has  never  been  in  force,^  and  that  no 
similar  law  has  ever  existed  in    Scotland.^ 

The  practice,  however,  of  leasing  land  (generally  for  terms  of 
considerable  length  and  with  provisions  for  renewal)  for  building 
purposes  has  prevailed  extensively  in  England  and  in  New  York, 
and  probably  also  in  other  parts  of  this  country. 

Does  the  law  afford  adequate  remedies  for  the  recovery  of  rents 
reserved  upon  grants  of  land  in  fee  for  building  purposes,  or  upon 
building  leases,  so  that  the  interference  of  equity  will  not  be  neces- 
sary? In  England,  as  has  been  seen,*  the  remedy  by  distress 
always  exists  for  the  non-payment  of  rent  of  any  kind,  and  is  the 
remedy  generally  resorted  to ;  and  where  a  sufficient  distress  can 
be  found,  it  seems  to  be  clearly  adequate;  but  where  no  sufficient 
distress  can  be  found,  it  seems  to  be  equally  clear  that  the  mere 
existence  of  a  right  to  distrain  ought  not  to  prevent  the  interfer- 
ence of  equity.  Does  the  law  of  England  afford  any  other  adequate 
remedy  in  the  cases  now  under  consideration?  It  seems  not. 
The  only  other  remedies  which  can  be  claimed  to  be  adequate  are 


1  Instances  of  such  grants  will  be  found,  however,  in  Mihies  v.  Branh,  5  M.  &  S.  41 1  ; 
Apsden  v.  Seddon,  i  Ex.  D.  496 ;  Haywood  v.  Brunswick  Building  Society,  8 
Q.  B.  D.  403. 

2  Ingersoll  v.  Sergeant,  i  Whart.  337. 

8  See  Clark  v.  Glasgow  Assurance  Co.,  i  McQ.  668. 
*  Supra,  p.  205,  n.  I. 

14 


2IO        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  sixth  and  seventh  of  those  already  enumerated  :  but  as  each  of 
these  is  slow,  and  as  each  of  them  is  likely  to  be  followed  by  a  suit 
in  equity  by  the  rent-payer,  the  rent-owner  ought  to  be  permitted  to 
resort  to  equity  in  the  first  instance.  In  this  country  also  it  seems 
equally  clear  that  there  is  no  adequate  legal  remedy,  unless  the 
remedy  by  distress  exists,,  and  there  be  a  sufficient  distress,  or 
unless  the  rent-owner  have  a  summary  remedy  for  the  recovery  of 
the  land  itself.  Moreover,  this  latter  remedy  does  not  exist  where 
there  is  no  relation  of  landlord  and  tenant,  and  therefore  it  does 
not  exist  (unless  in  Pennsylvania)  where  a  rent  is  reserved  upon  a 
grant  of  land  in  fee ;  and  it  ought  not  to  exist  in  any  case  of  a 
building  lease,  as  it  will  have  the  effect  of  depriving  the  tenant 
definitively  of  all  his  interest  in  the  land  by  way  of  penalty  and  for- 
feiture, and  will  thus  not  only  work  a  great  injustice  to  such  tenant, 
but  also  an  injury  to  the  public  by  discouraging  the  acceptance  of 
such  leases. 

Life  annuities  are  likely  to  be  a  favorite  form  of  investment 
wherever  money  is  plenty  and  the  rate  of  interest  low ;  but  where 
money  is  scarce,  and  the  rate  of  interest  is  high,  they  are  likely  to 
be  in  little  vogue.  Accordingly,  they  have  always  been  in  extensive 
use  in  England,  while  in  this  country,  until  within  a  very  recent 
date,  they  have  been  almost  unknown.  In  the  future,  however, 
they  are  likely  to  be  as  much  in  favor  here  as  in  England. 

When  such  annuities  are  granted  in  the  form  of  rents,  the  ques- 
tion of  equity's  assuming  jurisdiction  over  them  is  substantially  the 
same  in  England  as  in  the  class  of  cases  last  considered.  In  mod- 
ern times,  however,  when  annuities  are  granted  in  England,  special 
provisions  are  generally  made  in  each  case  for  their  security;  ^  and 
therefore,  when  equity  is  applied  to  by  an  annuitant,  it  is  seldom 
on  the  mere  ground  that  the  annuity  constitutes  a  rent.  In  this 
country,  the  purchase  and  sale  of  annuities  is  never  likely  to  be  the 
subject  of  special  bargains  between  private  persons  ;  but  the  grant- 
ing of  annuities  is  likely  to  be  confined  to  companies  organized  for 
that  purpose  (among  others),  and  such  companies  publish  the 
terms  on  which  they  will  grant  annuities,  and  these  terms  are  uni- 
form, and  hence  the  granting  of  an  annuity  will  never  be  the  sub- 
ject of  a  special  bargain  ;  and  every  annuity  will  be  granted  on  the 
personal  credit  alone  of  the  company  granting  it.  In  short,  an 
annuity  is  never  likely  in  this  country  to  take  the  form  of  a  rent. 

1  See  Lumley  on  Annuities  214. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOiV.        211 

Indeed,  the  practice  of  granting  rents  is  believed  never  to  have 
existed,  to  any  appreciable  extent,  in  this  country;  and  it  is  not 
likely  to  exist  in  the  future. 

Returning  now  to  the  general  question  of  the  jurisdiction  of 
equity  over  rents,  it  may  be  said  with  confidence  that  the  owner 
of  a  rent  of  any  kind  is  entitled  to  have  the  same  paid,  if  the  in- 
come of  the  land  out  of  which  it  issues  is  sufficient  to  pay  it,  and 
that  it  does  not  lie  in  the  mouth  of  the  tenant  of  the  land  to  say 
that  the  income  is  insufficient.  It  may  be  asked,  therefore,  why 
every  owner  of  a  rent  is  not  entitled  to  invoke  the  aid  of  equity  as 
of  course  upon  showing  that  his  rent  is  in  arrear;  and  it  may  be 
answered,  first,  that  the  law  of  England  has  shown  a  full  appre- 
ciation of  the  claims  of  rent-owners  by  providing  them  with  an 
extraordinary  and  exclusive  remedy,  —  one,  too,  which  they  can 
themselves  enforce  without  the  aid  of  any  court,  —  and  by  pro- 
tecting that  remedy  carefully  as  well  against  the  frauds  of  tenants 
as  against  the  competing  claims  of  other  creditors,  —  namely, 
that  of  distress;  and  that  it  is  the  clear  policy  of  that  law  to 
require  rent-owners  to  exhaust  the  remedy  thus  provided  before 
seeking  a  more  specific  one  against  the  income  of  the  land ; 
and  that,  while  the  law  of  such  of  our  States  as  still  retain  the 
remedy  of  distress  is  much  less  pronounced  in  its  favor  than 
the  law  of  England,  yet  it  would  be  clearly  against  the  policy 
of  the  law  in  all  such  States  for  equity  to  interfere  in  favor  of 
rent-owners  before  the  remedy  by  distress  has  been  exhausted. 
Secondly,  that  in  most  of  our  States,  as  has  been  seen,  land- 
lords can  terminate,  in  a  summary  manner,  their  relations  with 
tenants  who  fail  to  pay  their  rents,  and  that  a  rent-owner  who  has 
that  power  cannot  invoke  the  aid  of  equity,  since  the  law  gives 
him  all  that  equity  can  give  him,  and  even  more.  Where,  however, 
the  right  to  distrain  is  not  given,  or  where  that  remedy  has  been 
exhausted  and  still  the  rent  is  in  arrear,  and  where  the  rent-owner 
is  not  entitled  by  summary  proceedings  to  recover  possession  of 
the  land  out  of  which  the  rent  issues,  and  that  too  by  a  title  unim- 
peachable at  law  or  in  equity,  it  seems  clear  that  he  is  entitled  to 
the  aid  of  equity,  for  the  purpose  of  securing  the  application  of  the 
net  income  of  the  land  to  the  payment  of  the  rent. 

It  remains  to  call  the  reader's  attention  briefly  to  the.  authorities 
upon  the  subject  of  the  jurisdiction  of  equity  over  rents.  Equity 
began  to  interfere  in  favor  of  rent-owners  as  early  as  the  reign  of 
Elizabeth,  and  the  time  of  Lord  Chancellor  Ellesmere.     At  first, 


212        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

however,  it  confined  its  interference  to  the  cases  in  which  there  was 
some  obstacle  (which  equity  regarded  as  technical  and  unsubstan- 
tial) in  the  way  of  a  legal  remedy.  Thus,  in  Web  v.  Web  ^  (42 
Eliz.),  where  a  rent  was  given  by  will,  without  any  right  to  distrain, 
or  any  right  to  enter  for  non-payment,  and  the  devisee  had  not  been 
able  to  obtain  seisin,  and  consequently  could  neither  have  a  writ 
of  assize,  nor  a  writ  of  annuity,  nor  an  action  of  covenant,  nor  an 
action  of  debt  (as  the  rent  was  undoubtedly  for  the  life  of  the 
devisee  at  least),  nor  distrain,  nor  enter  upon  the  land,  it  was 
decreed  that  the  tenant  of  the  land  pay  the  rent,  notwithstanding 
the  want  of  seisin  in  the  devisee.  So  in  Ferrers  v.  Tanner  ^  (44 
Eliz.),  which  presented  substantially  the  same  facts,  the  plaintiff 
was  relieved,  though  it  is  not  clear  what  was  the  relief  given. 
According  to  one  book,  the  defendant  was  simply  decreed  to  give 
seisin  to  the  plaintiff.  The  further  fact  is  stated  that  the  devisee 
of  the  land  promised  the  testator  to  pay  the  rent,  and  thus  pre- 
vented his  taking  other  means  of  securing  its  payment;  and  this 
latter  fact  was  regarded  as  strengthening  the  case  in  point  of 
jurisdiction.  Again,  in  Shute  v.  Mallory^  (5  Jac.  I.),  where  a 
lessor  had  assigned  his  reversion  to  the  plaintiff,  and  the  lessee 
(the  defendant)  refused  to  attorn.  Lord  Chancellor  Ellesmere 
decreed  him  to  attorn,  and  to  pay  the  rent.  In  the  foregoing 
cases,  however,  it  is  to  be  observed  that  the  bill  \^as  not  founded 
directly  upon  the  ownership  of  the  rent,  but  upon  an  equitable 
obligation  (/.  c,  an  obligation  imposed  upon  the  defendant  by 
equity)  either  to  give  the  plaintiff  seisin  and  to  attorn  to  him,  or 
not  to  set  up  the  defence  of  want  of  seisin  or  want  of  attornment. 
Therefore,  in  strictness,  these  cases  do  not  belong  to  the  present 
inquiry. 

It  is  further  to  be  observed  that,  in  such  cases,  according  to 
modern  practice,  if  the  merits  of  the  plaintiff's  case  be  contro- 
verted by  the  defendant,  there  must  be  a  trial  at  law,  under  the 
direction  of  the  court  of  equity,  before  final  relief  can  be  given  ; 
and  the  court  of  equity,  in  decreeing  a  trial  at  law,  will  direct  that 
the  defendant  do  not  set  up  the  defence  {e.g.)  of  want  of  seisin,  or 
want  of  attornment.  It  will  be  seen,  therefore,  that  the  obligation 
which  equity  enforces  in  such  cases  is  always  negative.  If,  indeed, 
equity  should  treat  the  obligation  as  affirmative,  and  decree  the 

1  Moo.  626. 

2  Moo.  626,  pi.  85;  cited  i  Ch.  Cas.  147  {nom.  Ferris  v.  Newby),  and  3  Ch.  Cas.  91. 
^  Moo.  805. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         213 

defendant  {c.g.^  to  give  the  plaintiff  seisin,  or  to  attorn  to  him,  it 
would  stop  there,  and  leave  the  plaintiff  to  sue  at  law  indepen- 
dently of  equity,  just  as  if  he  had  obtained  seisin  or  an  attorn- 
ment without  the  aid  of  equity;  but  in  modern  times  equity 
declines  to  give  such  relief,  and  for  very  good  reasons.  If  equity 
interferes  at  all,  it  will  insist  upon  controlling  the  entire  litigation; 
and  if  a  trial  at  law  is  necessary,  it  will  insist  upon  its  being  had 
under  its  own  direction. 

If  a  rent  be  reserved  or  granted  out  of  incorporeal  property, 
e.  g.  out  of  tithes,^  or  out  of  a  manor  in  which  there  are  no  demesne 
lands,  and  which  consists,  therefore,  only  of  a  seigniory  or  services,^ 
or  out  of  tolls,3  as  there  can  of  course  be  no  distress,  a  bill  in  equity 
to  enforce  payment  of  the  rent  will  be  entertained.  So  if  an  owner 
of  rent  be  unable  to  identify  the  land  out  of  which  the  rent  issues, 
because  of  the  uncertainty  and  confusion  of  boundaries,  and  there- 
fore cannot  distrain,  he  will  be  entitled  to  come  into  equity  to  have 
the  boundaries  of  the  land  ascertained,  and  payment  of  the  rent 
enforced.*  So  if  the  existence  of  a  rent  be  clearly  proved,  but  it 
cannot  be  ascertained  what  kind  of  rent  it  is,  and  hence  the  owner 
of  it  cannot  distrain,  he  will  be  entitled  to  relief  in  equity.^  There 
seems  to  be  the  same  reason  for  giving  relief  in  equity  to  an  owner 
of  rent  who  has  no  right  to  distrain,  though  there  seems  to  be  no 
authority  directly  upon  the  point.^  The  absence  of  English  au- 
thority may  be  due  to  the  fact  that  no  such  question  can  have 
arisen  in  England  since  the  statute  of  4  Geo.  II.  c.  28,  s.  5.'  It 
has  been  held,  in  two  cases,^  that  the  fact  that  no  sufficient  dis- 
tress can  be  found  on  land  out  of  which  a  rent  issues,  does  not 
authorize  the  owner  of  the  rent  to  resort  to  equity  for  relief;  but  it 
seems  impossible  to  support  these  cases  upon  any  principle.  It  is 
admitted  that  equity  will  interfere,  if  the  right  to  distrai-n  be  ren- 


1  Thorndike  v.  Allington,  i  Ch.  Cas.  79;  Busby  v.  Earl  of  Salisbury,  Finch,  256, 
cited  {novi.  Berkeley  v.  Salisbury),  2  Bro.  C.  C.  518. 

2  Duke  of  Leeds  v.  Powell,  i  Ves.  171. 

3  Duke  of  Leeds  v.  New  Radnor,  2  Bro.  C.  C.  338. 

*  Boreman  v.  Yeat,  cited  i  Ch.  Cas.  145;  Cocks  v.  Foley,  i  Vern.  359;  North  r. 
Strafford,  3  P.  Wms.  148  ;  Benson  v.  Baldwyn,  i  Atk.  598  ;  Duke  of  Bridgewater  v. 
Edwards,  6  Bro.  P.  C.  (Toml.  ed.)  368. 

8  Collet  V.  Jaques,  i  Ch.  Cas.  120;  Cocks  v.  Foley,  i  Vern.  359. 

6  In  Champernoon  v.  Gubbs,  Ch.  Prec.  126,  the  plaintiff's  counsel  said:  "If  the 
rent  had  been  granted  without  any  clause  of  distress,  or  any  other  remedy  at  law,  he 
might  have  had  relief  here." 

"^  See  supra,  p.  205,  n.  i. 

8  Davy  V.  Davy,  i  Ch.  Cas.  144;  Champernoon  v.  Gubbs,  2  Vern.  382. 


214        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

dered  fruitless  by  fraud ;  and  yet  fraud  does  not  seem  to  affect  the 
question.  The  ground  upon  which  a  rent-owner  must  be  relieved 
in  equity,  if  at  all,  is  the  want  of  a  sufficient  remedy  at  law,  and 
whether  that  ground  exists  or  not,  does  not  at  all  depend  upon  the 
conduct  of  the  rent-payer.  If,  indeed,  the  supposed  fraud  could  be 
made  the  ground  of  relief,  the  case  might  be  different;  but  that 
seems  to  be  impossible.  To  prevent  a  distress  by  fraud  is,  like 
any  other  fraud,  a  tort;  and,  such  a  fraud  having  been  committed, 
the  only  way  in  which  equity  can  relieve  against  it  is  by  compelling 
the  tortfeasor  specifically  to  repair  his  tort;  but  how  can  equity 
compel  the  specific  reparation  of  such  a  tort?  It  was,  indeed, 
prayed  in  one  case^  that  a  sufficient  distress  be  set  out  by  the 
defendant,  but  the  granting  of  such  relief  would  clearly  be  out  of 
the  question. 

If  a  court  of  equity  assume  jurisdiction  of  a  bill  to  enforce  the 
payment  of  rent,  what  will  be  the  relief  which  it  will  grant  against 
the  land  out  of  which  the  rent  issues?  It  was  held  in  one  well 
considered  case'^  that  a  sale  of  the  land  would  be  directed,  and  the 
proceeds  of  the  sale  applied  to  the  payment  of  the  rent.  But  there 
seem  to  be  two  serious  objections  to  such  a  course:  ist,  such 
relief  is  not  well  adapted  to  a  case  where  payments  in  annual,  semi- 
annual, or  quarterly  instalments  are  to  be  provided  for,  perhaps  for 
an  indefinite  period ;  2dly,  a  rent,  as  has  been  already  seen,  is  not 
in  its  nature  a  charge  upon  the  corpus  of  the  land  out  of  which  it 
issues,  but  merely  upon  its  fruits  and  income ;  and  when  a  court  of 
equity  gives  relief  upon  the  foundation  of  a  legal  right,  it  cannot 
extend  its  relief  beyond  the  legal  right.  It  seems,  therefore,  that 
the  appointment  of  a  receiver,  and  the  application  through  him  of 
the  net  income  of  the  land  to  the  payment  of  the  rent,  is  the  proper 
relief  against  the  land.  It  seems,  however,  that,  in  case  of  a  rent 
reserved,  any  deficiency  of  income  in  any  year  must  be  made  good 
out  of  the  surplus  income  of  any  subsequent  year;  and,  in  case  of 
a  rent  granted,  if  for  a  limited  period  of  time,  it  seems  that  the 
owner  of  the  rent  is  entitled  to  receive  the  net  income  of  the  land 
until  all  arrears  of  the  rent  are  paid. 

In  one  case,^  the  plaintiff  prayed  the  court  to  decree  to  him  the 
possession  and  enjoyment  of  the  land  until,  by  receipt  of  the  rents 
and  profits,  he  should  be  paid  what  was  due  to  him,  and  his  coun- 

1  Champernoon  v.  Gubbs,  2  Vern.  382;  Ch.  Free.  126. 

2  Cupit  V.  Jackson,  13  Price,  721. 
'  Champernoon  v.  Gubbs,  supra. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        21  5 

sel  cited  two  unreported  cases  in  which  he  said  such  relief  was 
given;  but  this  seems  to  be  inadmissible,  as  going  beyond  the 
plaintiff's  legal  rights;  and  even  if  such  relief  were  admissible, 
the  appointment  of  a  receiver  would  be  a  much  more  judicious 
course. 

Although  a  rent-owner  is  entitled  to  go  into  equity  only  for  the 
purpose  of  obtaining  relief  against  the  land,  yet,  if  he  obtain  relief 
against  the  land,  equity  will  give  him  relief  also  against  the  defend- 
ant personally,  so  far  as  the  defendant  is  by  law  personally  liable 
for  the  rent.  Great  care  must,  however,  be  taken  not  to  direct  a 
defendant,  in  general  and  unqualified  terms,  to  pay  whatever  shall 
be  due  to  the  plaintiff,  unless  the  defendant  is  by  law  liable  for  the 
whole  of  the  rent.  If  the  defendant  has  absolutely  covenanted  to 
pay  the  rent,  of  course  he  is  liable  on  his  covenant,  and  no  difficulty 
will  arise.  But  if  his  liability  is  only  by  reason  of  his  having  been 
the  assignee  of  the  term  on  the  creation  of  which  the  rent  was 
reserved,  or  the  grantee  of  the  estate  out  of  which  the  rent  was 
granted,  his  liability  will  begin  only  when  the  assignment  or  grant 
is  made  to  him,  and  it  will  continue  only  so  long  as  the  term  or 
estate  remains  vested  in  him;  and  such  a  defendant  can  never  be 
directed  by  the  decree  in  general  and  unqualified  terms  to  make 
payments  of  rent  thereafter  to  accrue,  for  even  if  the  estate  remain 
vested  in  him  when  the  decree  is  made,  it  will  be  liable  to  be  de- 
vested, and  his  liability  thus  terminated,  at  any  moment.  On  the 
other  hand,  he  will  be  liable  absolutely  for  all  the  rent  that  has 
accrued  during  the  time  that  the  estate  has  been  vested  in  him, 
and  his  liability  will  not  be  limited  to  his  receipts.  In  short,  the 
defendant  will  either  be  liable  absolutely,  or  he  will  not  be  liable 
at  all ;  and,  therefore,  there  w^ould  seem  to  be  no  propriety  in 
directing  him  to  account  for  the  rents  and  profits  of  the  land. 

Passing  now  from  the  subject  of  rent  to  that  of  tithe,  it  may  be 
remarked  that  the  latter,  unlike  the  former,  has  ceased  to  be  of 
much  practical  importance  even  in  England,  and  hence  the  law 
applicable  to  it  is  chiefly  interesting  for  the  principles  which  it 
involves. 

Attention  has  already  been  called  to  a  few  points  in  which  rent 
and  tithe  are  alike ;  ^  but  perhaps  their  differences  are  more  impor- 
tant than  their  resemblances.  First,  rent,  as  has  been  seen,  is 
created  entirely  by  the  acts  of  the  parties  interested  in  it,  and  its 

1  See  supra,  p.  199. 


2l6        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

form  and  incidents  are  such  as  the  parties  choose,  within  the  limits 
of  the  law,  to  give  it.  In  short,  the  law  has  no  purpose  of  its  own 
to  serve,  nor  any  policy  of  "its  own  to  promote,  in  regard  to  rent; 
and  in  this  respect  rents  may  be  likened  to  contracts.  In  regard 
to  tithe,  however,  it  is  very  different;  for  every  obligation  to  pay 
tithe  is  created  by  the  law  alone ;  and  hence  the  nature  of  the  ob- 
ligation is  such  as  the  law  makes  it,  while  its  form  and  incidents 
are  such  as  the  law  gives  it.  Moreover,  the  law  by  which  the  obli- 
gation is  created  is  uniform  in  its  operation,  and  hence  the  nature 
of  the  obligation,  and  also  its  form  and  incidents,  are  always  the 
same;  and  therefore  it  follows  that  the  subject  of  tithe  is  primarily 
much  less  complex  than  that  of  rent.  Indeed,  the  creation  of  the 
obligation  to  pay  tithe  is  simply  an  act  of  sovereign  power,  exer- 
cised at  the  expense  of  private  persons,  but  for  the  benefit  of  the 
public.  In  truth,  tithe  is  a  species  of  tax;  and  the  law  governing 
it  is  a  part  of  the  public  law  of  the  State.  According  to  modern 
ideas,  this  tax  should  be  collected  and  applied  by  public  authority ; 
but  in  fact  the  right  to  receive  the  tithes  payable  in  each  parish  is 
vested  in  the  parson  of  the  parish  as  a  private  right:  otherwise 
there  would  be  no  propriety  in  speaking  of  the  subject  of  tithe  in 
this  place. 

Secondly,  while  a  rent  is  generally  payable  in  money,  —  the 
amount  of  which  is  fixed,  and  constitutes  a  debt  in  the  strict  Eng- 
lish sense,—  predial  tithe  is  always  by  law  payable  in  kind,^  i.e., 
it  consists  of  one  tenth  of  the  actual  produce  of  the  land.  Hence 
it  is  necessary  that  the  tenth  part  be  separated  from  the  other  nine 
parts  before  the  tithe-owner  can  receive  his  tithe ;  but  the  moment 
that  a  separation  takes  place,  the  right  of  the  tithe-owner  undergoes 
a  change ;  for  the  title  to  the  tenth  part  then  vests  in  him  as  its 
owner.  Moreover,  the  separation  of  the  tenth  part  from  the  other 
nine  parts  was  a  duty  imposed  upon  the  tithe-payer  (/.  r.,  the  occu- 
pier or  owner  of  the  land)  ;  and  the  performance  of  this  duty 
(which  was  called  tlie  setting  out  of  tithe,  and  which  was  the  only 
duty  or  obligation  imposed  upon  the  tithe-payer)  constituted  the 
payment  of  tithe. 

Thirdly,  tithe  was  originally  the  mere  creature  of  the  canon  law ; 
and,  as  that  law  could  not  create  a  real  obligation,  payment  of 
tithe  was  secured  only  by  means  of  the  personal  duty  before  men- 
tioned, imposed  upon  the  tithe-payer,  and  enforced  by  ecclesiastical 

1  There  seems  to  be  no  doubt  that  rent  also  was  in  fact  originally  payable  in  kind. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         21/ 

censures,  or  by  such  other  penalties  as  the  civil  power  placed  at 
the  disposal  of  the  canon  law  judge.  At  a  very  early  day,  however, 
—  as  early,  indeed,  as  the  time  of  the  Heptarchy,'  —  the  right  of 
the  Church  to  receive  tithe  was  recognized  in  England  by  the  civil 
power,  and  thus  the  right  became  a  real  obligation,  though  the 
personal  duty  still  remained  as  before. 

Fourthly,  while  the  civil  power  thus  changed  the  nature  of  tithe, 
it  did  not  provide  any  new  remedy,  except  indirectly  and  by  way  of 
penalty,'^  for  enforcing  its  payment;  and  hence  a  suit  in  the  eccle- 
siastical courts  continued  to  be  the  ordinary  remed)^  for  enforcing 
the  payment  of  tithe  until  comparatively  modern  times,  when  the 
jurisdiction  of  those  courts  was  superseded  by  the  Court  of  Chan- 
cery. This  change  of  jurisdiction,  however,  caused  no  change  in 
the  nature  of  the  remedy.  The  suit  for  tithe  in  the  ecclesiastical 
courts  was  founded  on  the  duty  to  set  out  tithe,  and  on  the  breach 
of  that  duty  by  the  defendant,  and  the  foundation  of  a  suit  in  equity 
for  tithe  is  the  same.  Since,  however,  a  suit  in  equity  for  tithe  is 
not  founded,  except  indirectly,  upon  the  real  obligation  to  pay  tithe, 
this  is  not  the  proper  place  to  consider  the  nature  and  incidents  of 
such  a  suit,  or  the  reasons  for  equity's  entertaining  it. 

Fifthly,  the  result  therefore  is  that  we  have  the  singular  anomaly 
of  a  real  obligation  without  any  remedy  against  the  land  on  which 
the  obligation  rests,  and  consequently  without  any  "  real "  security 
for  the  performance  of  the  obligation.  The  reasons  for  this,  how- 
ever, are  not  exclusively  historical.  From  the  nature  of  the 
obligation,  as  has  been  seen,  the  remedy  can  be  only  against 
the  products  of  the  land, —  not  against  the  land  itself.  From  the 
nature  of  the  obligation  also,  it  is  not  easy  to  give  the  tithe-owner 
any  legal  claim  against  the  products  of  the  land  until  the  tenth 
part  is  separated  from  the  other  nine  parts.  Could  the  ecclesias- 
tical courts,  or  courts  of  equity,  have  enforced  specific  performance 
of  the  duty  of  setting  out  tithe,  or  specific  reparation  of  a  breach 
of  that  duty,  and  thus  have  afforded  to  the  tithe-owner  an  effective 
"  real  "  security,  at  least  from  the  moment  when  the  tithe  was  set 
out?  No,  clearly  not.  First,  there  is  only  one  time  when  tithe  can, 
in  the  nature  of  things,  be  effectively  set  out,  namely,  when  the 

1  2  Bl.  Com.  25,  26 ;  3  Burn's  Eccl.  Law  (Phillimore's  ed.)  679. 

2  See  2  &  3  Edw.  VI.  c.  13,  s.  i.  By  32  Hen.  VIII.  c.  7,  s.  7,  rent-owners  were 
authorized  in  certain  cases  to  bring  writs  of  assize  and  other  appropriate  real  actions 
to  establish  their  rights  ;  and  it  was  consequently  held  that  ejectment  might  be  broiiglit 
for  the  same  purpose,  as  a  substitute  for  a  real  action. 


2l8        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

crops  have  been  severed  from  the  soil,  but  still  remain  in  the  field 
where  they  grew ;  and  it  is  not  practicable  for  any  court  to  compel 
the  doing  of  anything  at  any  precise  time.  Secondly,  for  the 
same  reason,  specific  reparation  is  out  of  the  question.  Thirdly, 
the  setting  out  of  tithe  consists  of  so  many  particulars,  and  in- 
volves so  much  exercise  of  judgment,  care,  and  honesty,  that  it 
would  be  very  injudicious  for  any  court  to  attempt  to  enforce 
it  specifically. 

The  conclusion  therefore  is  that  a  compensation  in  money 
seems  to  be  the  only  remedy  practicable  for  a  refusal  or  neglect 
to  set  out  tithe,  without  a  radical  change  in  the  nature  of  the 
obligation  itself. 


ARTICLE    IX.^ 


VIII. 

Classification  of  Rights  and  Wrongs. 

MORE  than  hvelve  years  ago,  the  writer  published  in  this  Re- 
view,^ by  way  of  introduction  to  a  series  of  articles  on  equity 
jurisdiction,  a  classification  of  those  rights  which  it  is  the  duty  of 
courts  of  justice  to  protect  and  enforce,  and  also  of  the  wrongs  by 
which  such  rights  may  be  infringed.  The  views  then  stated,  hav- 
ing only  recently  been  adopted  by  the  writer,  were  comparatively 
crude  and  undeveloped.  Since  that  date,  however,  he  has  given 
considerable  attention  to  the  classification  of  rights  and  wrongs, 
and  has  made  his  views  upon  that  subject  the  basis  of  an  ele- 
mentary course  of  instruction  on  equity  jurisdiction  ;  and  the  result 
has  been  that  his  views  of  twelve  years  ago  have  undergone  some 
modification  and  much  development.  It  has  occurred  to  him, 
therefore,  that  a  re-statcment  of  the  views  now  held  by  him  might 
not  be  out  of  place,  especially  as  some  of  his  former  pupils,  now 
engaged  in  teaching,  have  done  him  the  honor  to  make  some  use 
of  his  former  observations  in  their  own  teaching. 

As  those  rights  which  it  is  the  duty  of  courts  of  justice  to  pro- 
tect and  enforce  include  equitable  as  well  as  legal  rights,  and  as 
each  of  these  classes  of  rights  requires  separate  treatment,  it  will 
be  convenient  to  begin  with  legal  rights. 

Legal  rights  are  either  absolute  or  relative.  An  absolute  right 
is  one  which  does  not  imply  any  correlative  obligation  or  duty.     A 

1  13  Harv.  L.  Rev.  537.  2  See  supra,  pp.  1-39. 


220        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

relative  right  is  one  which  does  imply  a  correlative  obligation  or 
duty.i 

Absolute  rights  are  either  personal  rights  or  rights  of  property. 
A  personal  right  is  one  which  belongs  to  every  natural  person  as 
such.  A  right  of  property  is  one  which  consists  of  ownership  or 
dominion  (^doininiuvi). 

Every  personal  right  is  born  with  the  person  to  whom  it  belongs, 
and  dies  with  him.  Personal  rights,  therefore,  can  neither  be  ac- 
quired nor  parted  with,  and  hence  they  are  never  the  subjects  of 
commerce,  nor  have  they  any  pecuniary  value.  For  the  same  rea- 
sons, courts  of  justice  never  have  occasion  to  take  cognizance  of 
them  except  when  complaints  are  made  of  their  infringement; 
and  even  then  the  only  question  of  law  that  can  be  raised  respect- 
ing them  is  whether  or  not  they  have  been  infringed.  It  follows, 
therefore,  that  all  the  knowledge  that  we  have  of  personal  rights 
relates  to  the  one  question,  what  acts  will  constitute  an  infringe- 
ment of  them.  We  can  neither  number  them  nor  define  them, 
and  any  attempt  to  do  either  will  be  profitless.  There  is,  how- 
ever, one  personal  right  which  differs  so  widely  from  most  others 
that  it  deserves  to  be  mentioned,  namely,  the  equal  right  of  all 
persons  to  use  public  highways,  navigable  waters,  and  the  high 
seas. 

In  all  the  foregoing  particulars,  rights  of  property  are  the  very 
converse  of  personal  rights.  All  such  rights  are  acquired,  and 
they  may  all  be  alienated.  They  are  all,  therefore,  the  subjects  of 
commerce,  and  they  all  have,  or  are  supposed  to  have,  a  pecuniary 
value.  For  the  same  reasons,  courts  of  justice  take  cognizance  of 
them  for  a  great  variety  of  purposes,  and  they  are  all  capable  of 
being  enumerated  and  defined. 

Rights  of  property  are  said  to  be  either  corporeal  or  incorporeal. 
In  truth,  however,  all  rights  are  incorporeal;  and  what  is  meant 
is  that  the  subjects  of  rights  of  property  (i.e.,  things  owned)  are 
either  corporeal  or  incorporeal.  A  thing  owned  is  corporeal  when  it 
consists  of  some  portion  of  the  material  world,  and  incorporeal 
when  it  does  not. 

A  single  material  thing  may  be  owned  by  several  persons,  and 

1  Writers  upon  jurisprudence  generally  use  the  terms  in  rem  and  in  personam  to 
mark  the  primary  division  of  legal  rights,  and  it  is,  therefore,  proper  for  me  to  explain 
why  I  use  the  terms  "  absolute  "  and  "  relative  "  instead.  It  will,  however,  be  more 
convenient  to  do  this  after  treating  of  the  different  classes  of  legal  rights.  See  infra, 
p.  229,  n.  I. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        221 

that  too  without  any  division  of  it,  cither  actual  or  supposed,  each 
person  owning  an  undivided  share  of  it;  and  in  that  case  each 
owner  has  a  right  of  property  just  as  absolute  as  if  he  were  the 
sole  owner  of  the  thing.  In  case  of  land  also,  the  ownership,  in- 
stead of  being  divided  into  shares,  may  be  divided  among  several 
persons  in  respect  to  the  time  of  their  enjoyment,  one  of  them 
having  the  right  of  immediate  enjoyment,  and  the  others  having 
respectively  successive  rights  of  future  enjoyment.  This  peculiar- 
ity in  the  ownership  of  land  comes  from  the  feudal  system.  Land 
itself  is  also  peculiar  in  this,  namely,  that  a  physical  division  of  it 
among  different  owners  is  impossible;  and  hence  the  land  of  A, 
for  example,  is  separated  from  the  adjoining  land  only  by  a  mathe- 
matical line  described  upon  the  surface,  A's  ownership  extending 
to  the  centre  of  the  earth  in  one  direction,  and  indefinitely  in 
the  other  direction.  By  our  law,  land  is  also  capable  of  an  imagi- 
nary division,  for  the  purposes  of  ownership,  laterally  as  well  as 
vertically;  for  one  person  may  own  the  surface  of  the  land,  and 
another  may  own  all  the  minerals  which  the  land  contains.  Such 
a  mode  of  dividing  the  ownership  of  land  certainly  creates  many 
legal  difficulties,  but  it  seem.s  to  be  persisted  in  notwithstanding, 
at  least  in  England.^  In  like  manner,  by  our  law,  a  building  is 
capable  of  an  imaginary  division,  for  purposes  of  ownership,  both 
lateral  and  vertical.'-^ 

Relative  rights  are  either  obligations  or  duties.  Strictly,  indeed, 
"obligation"  or  "duty"  is  the  name  of  the  thing  with  which  a 
relative  right  correlates ;  but  such  is  the  poverty  of  language  that 
we  have  to  use  the  same  word  also  to  express  the  right  itself 

An  obligation  is  either  personal  or  real,  according  as  the  obligor 
is  a  person  or  a  thing.  An  obligation  may  be  imposed  upon  a  per- 
son either  by  his  own  act,  /.  r.,  by  contract  {obligatio  ex  contractii), 
or  by  act  of  law  (^obligatio  ex  lege,  or  obligatio  quasi  ex  contractii). 
An  obligation  may  be  imposed  upon  a  thing  either  by  the  law 
alone,  or  by  the  law  acting  concurrently  with  the  will  of  the  owner 
of  the  thing.  In  the  latter  case,  the  will  of  the  owner  must  be 
manifested  in  such  manner  as  the  law  requires  or  sanctions.  By 
our  law,  it  is  sometimes  sufficient  for  the  owner  of  a  thing  to  im- 
pose an  obligation  upon  himself,  the  law  treating  that  as  sufficient 
evidence  of  an  intention  to  impose  it  upon  the  thing  also,  —  when, 
for  example,  the  owner  of  land  enters  into  a  covenant  respecting 

1  Humphries  v.  Brogden,  12  Q.  B.  739,  755.  2  /bid.,  75^757- 


222        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

it,  and  the  covenant  is  said  to  run  with  the  land.  The  most  com- 
mon way,  however,  in  which  an  owner  of  land  manifests  his  will 
to  impose  an  obligation  upon  it  is  by  making  a  grant  to  the 
intended  obligee  of  the  right  against  the  land  which  he  wishes  to 
confer,  i.  <?.,  he  adopts  the  same  form  as  when  he  wishes  to  transfer 
the  title  to  the  land.  If,  however,  an  owner  of  land,  upon  trans- 
ferring the  title  to  it,  wishes  to  impose  upon  it  an  obligation  in  his 
own  favor,  he  does  this  by  means  of  a  reservation,  /.  c,  by  inserting 
in  the  instrument  of  transfer  a  clause  by  which  he  reserves  to 
himself  the  right  which  he  wishes  to  retain  against  the  land.  An 
owner  of  a  movable  thing  imposes  an  obligation  upon  it  by  deliver- 
ing the  possession  of  it  to  the  intended  obligee,  declaring  the 
purpose  for  which  he  does  it,  as  when  a  debtor  delivers  securities 
to  his  creditor  by  way  of  pledge  to  secure  the  payment  of  the  debt. 
A  real  obligation  is  undoubtedly  a  legal  fiction,  but  it  is  a  very 
useful  one.  It  was  invented  by  the  Romans,  from  whom  it  has 
been  inherited  by  the  nations  of  modern  Europe.  That  it  would 
ever  have  been  invented  by  the  latter  is  very  unlikely,  partly 
because  they  have  needed  it  less  than  did  the  ancients,  and 
partly  because  they  have  not,  like  the  ancients,  the  habit  of 
personifying  inanimate  things.  The  invention  was  used  by  the 
Romans  for  the  accomplishment  of  several  important  legal  objects, 
some  of  which  no  longer  exist,^  but  others  still  remain  in  full 
force.  It  was  by  means  of  this  that  one  person  acquired  rights 
in  things  belonging  to  others  (^Jura  in  rebus  alienis).  Such  rights 
were  called  servitutes  (i.  e.,  states  of  slavery)  in  respect  to  the 
thing  upon  which  the  obligation  was  imposed,  and  they  included 
every  right  which  one  could  have  in  a  thing,  short  of  owning  it. 
These  servitudes  were  divided  into  real  and  personal  servitudes, 
being  called  real  when  the  obligee  as  well  as  the  obligor,  i.e.,  the 
master  (^dominus)  as  well  as  the  slave  (^servus),  was  a  thing,  and 
personal  when  the  obligee  was  a  person.  The  former,  which  may 
be  termed  servitudes  proper,  have  passed  into  our  law  under  the 
names  of  easements  and  profits  a  prendre.  The  latter  included 
the  pignus  and  the  hypotheca,  i.e.,  the  Roman  mortgage,  —  which 
was  called  pignns  when  the  thing  mortgaged  was  delivered  to  the 
creditor,  and  hypotlieca  when  it  was  constituted  by  a  mere  agree- 
ment, the  thing  mortgaged  remaining  in  the  possession  of  its 
owner.  Originally,  possession  by  the  creditor  of  the  thing  mort- 
gaged was  indispensable,  and  so  the  pignus  alone  existed ;   but,  at 

1  See  supra,  p.  193. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         223 

a  later  period,  the  parties  to  the  transaction  were  permitted  to 
choose  between  a  pignus  and  a  hypothcca.  So  long  as  the  pignus 
was  alone  in  use,  it  is  obvious  that  the  obligation  could  be  created 
only  by  the  act  of  the  parties,  as  they  alone  could  change  the  pos- 
session of  the  property.  But  when  the  step  had  been  taken  of  per- 
mitting the  mere  agreement  of  the  parties  to  be  substituted  for  a 
change  of  possession,  it  was  another  easy  step  for  the  law,  when- 
ever it  saw  fit,  to  substitute  its  own  will  for  the  agreement  of  the 
parties ;  and  ficncc  hypothecations  came  to  be  divisible  into  such 
as  were  created  by  the  acts  of  the  parties  (conventional  hypothe- 
cations), and  such  as  were  created  by  the  act  of  the  law  (legal  or 
tacit  hypothecations).  Again,  so  long  as  a  change  of  possession 
was  indispensable,  it  is  plain  that  the  obligation  could  attach  only 
upon  property  which  was  perfectly  identified,  and  that  there  could 
be  no  change  in  the  property  subject  to  the  obligation,  except  by 
a  new  change  of  possession.  But  when  a  change  of  possession 
had  been  dispensed  with,  and  particularly  when  legal  or  tacit  hypo- 
thecations had  been  introduced,  it  became  perfectly  feasible  to 
make  the  obligation  attach  upon  all  property,  or  all  property  of  a 
certain  description,  either  then  belonging  to  the  debtor  or  after- 
ward acquired  by  him,  or  upon  all  property,  or  all  property  of  a 
certain  description,  belonging  to  the  debtor  for  the  time  being; 
and  hence  hypothecations  came  to  be  divided  into  those  which 
were  special  and  those  which  were  general. 

The  pignus  has  passed  into  our  law  under  the  name  of  pawn,  or 
pledge,  as  to  things  movable,  but  has  been  wholly  rejected  as 
to  land.  The  conventional  hypothcca  has  been  wholly  rejected  by 
our  common  law,  though  it  has  passed  into  our  admiralty  law. 
The  legal  or  tacit  hypothecation,  on  the  other  hand,  has  been 
admitted  into  our  common  law  to  some  extent,  though  under  the 
name  of  lien  (a  word  which  has  the  same  meaning  and  the  same 
derivation  as  "obligation").  Thus,  by  the  early  statute  of  13  E. 
I.  c.  18,  a  judgment  and  a  recognizance  (the  latter  being  an  ac- 
knowledgment of  a  debt  in  a  court  of  record,  of  which  acknow- 
ledgment a  record  is  made)  are  a  general  lien  on  all  the  land  of 
the  judgment  debtor  and  recognizor  respectively,  whether  then 
owned  by  them  or  afterwards  acquired.  So  also,  in  many  cases, 
the  law  gives  to  a  creditor  a  similar  lien  on  the  debtor's  movable 
property,  already  in  the  creditor's  possession  when  the  debt  ac- 
crues, though,  in  respect  to  the  creditor's  possession,  this  lien  has 
the  features  of  dipigJius  rather  than  of  a  hypotheca. 


224        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

There  are  also  in  our  law  other  instances  of  what  the  Romans 
would  have  called  personal  servitudes,  if  they  had  existed  in  their 
law;  for  example,  easements  and  profits  in  gross,^  i.e.,  easements 
and  profits  which  exist  for  the  benefit  of  their  owner  generally, 
—  not  for  the  exclusive  benefit  of  some  particular  estate  belonging 
to  him.     Rents  and  tithes  seem  also  to  fall  into  the  same  category.'-^ 

Passing  from  obligations  to  duties,  the  first  thing  to  be  ob- 
served is  that  the  latter  are  either  public  or  private,  according  as 
they  are  imposed  for  the  benefit  of  individuals  as  such,  or  for  the 
benefit  of  the  public,  or  of  some  portion  of  the  public. 

Duties  have  attracted  very  little  notice  either  from  courts  or 
from  legal  writers.  There  has,  indeed,  been  a  general  failure,  as 
well  in  our  law  as  in  the  Roman  law,'^  and  also  among  writers  on 
jurisprudence,*  to  discriminate  between  obligations  and  duties; 
and  yet  the  distinctions  between  them  are  many  and  important. 
All  duties  originate  in  commands  of  the  State  ;  while  all  obliga- 
tions originate  either  in  a  contract  between  the  parties,  or  in 
something  which  has  been  done  or  has  happened  to  the  gain  of 
the  one  and  the  loss  of  the  other,  and  under  such  circumstances 
as  make  it  unjust  for  the  one  to  retain  the  gain  or  the  other  to 
suffer  the  loss.  It  is  true  that  every  obligation  (being  a  vinailuui 
juris)  has  in  it  a  legal  element,  and  that  those  obligations  which 
do  not  originate  in  contract  are  pure  creatures  of  the  law:  yet,  in 
creating  obligations,  the  only  object  of  the  State  is  to  see  that  all 
persons  within  its  jurisdiction  act  justly  towards  others,  while,  in 
imposing  duties,  it  acts  from  motives  of  policy,  or  at  least  it  im- 
poses them  as  a  part  of  the  system  of  law  which  it  adopts,  and 
v/ithout  reference  to  any  particular  case  or  any  particular  persons. 
Moreover,  in  creating  obligations,  the  State  acts  in  each  particular 
case,  and  only  after  the  events  have  happened  which  render  its 
action  necessary,  and  in  each  case  its  action  has  reference  solely 
to  the  parties  between  whom  the  obligation  is  created,  while,  in 

1  See  Gale  on  Easements,  Part  i,  c.  i,  s.  4  (Part  i,  c.  2,  s.  4  of  the  6th  and  7th  eds.). 

2  See  supra,  p.  199. 

3  Thus,  hi  Justinian's  Institutes,  Z.  3,  Tit.  27,  six  instances  are  given  of  what  are 
called  obligationes  quasi  ex  contractu  (namely,  negotiorunt  gestonim,  tutels,  covnnuni 
dividundo,  familia:  crciscunda:,  ex  testamento,  solntio  tion  dehiti),  only  the  first  and  last 
of  which  seem  in  truth  to  belong  to  that  category,  the  other  four  being  instances  of 
duties. 

*  See  Holland,  Jurisprudence,  Part  2,  c.  12,  in  which  obligations  are  declared  to  em- 
brace all  rights  in  personam  {i.e.,  all  relative  rights),  and  in  which  obligations  and 
duties  are  treated  of  indiscriminately. 


A   BRIEF  SURVEY  OF  E(2l/ITY  JURISDICTIOX.        225 

imposing  duties,  the  State  issues  its  command  once  for  all,  and 
the  command  always  precedes  the  duty.  In  creating  obligations, 
the  State  acts  generally  through  its  courts  of  justice,  while,  in 
imposing  duties,  it  acts  directly  or  indirectly  through  its  legisla- 
ture, i.  e.,  duties  are  imposed  by  positive  laws.  In  short,  the  neces- 
sity for  creating  an  obligation  is  established  by  a  posteriori  reason- 
ing, while  the  necessity  for  imposing  a  duty  is  established  by  a 
priori  reasoning.  To  an  obligation  there  must  always  be  two  par- 
ties or  sets  of  parties,  and  neither  of  them  can  ever  be  changed 
except  by  authority  of  law.  Of  duties,  on  the  other  hand,  parties 
cannot  properly  be  predicated,  as  duties  are  imposed,  not  upon  iden- 
tified persons,  but  upon  persons  in  certain  situations,  or  occupying 
certain  positions,  and  they  arc  imposed  also  in  favor  of  persons  in 
certain  situations,  or  occupying  certain  positions,  and,  therefore, 
the  person  who  is  to  perform  a  given  duty,  as  well  as  the  person 
in  whose  favor  it  is  to  be  performed,  is  liable  to  constant  change. 

The  cases  in  which  duties  are  imposed,  especially  by  modern 
statutes,  are  numberless,  and  any  attempt  to  enumerate  or  classify 
them  would  be  futile.^  There  are,  however,  many  duties,  most 
of  which  are  imposed  by  ancient  statutes,  or  by  rules  of  the  com- 
mon law  or  the  canon  law  which  have  the  force  of  statutes,  -^ 
which  are  well  known,  and  some  of  which  it  may  be  well  to  men- 
tion. Probably  the  most  ancient  instance  to  be  found  is  the  duty 
imposed  upon  an  executor  to  pay  legacies.  It  was  originally 
imposed  by  the  Roman  law  upon  the  predecessor  of  our  executor, 

1  In  Couch  V.  Steel,  3  El.  &  Bl.  402,  it  was  held  that  the  statute  of  7  &  8  Vict.  c.  1 1 2, 
s.  18,  makes  it  the  duty  of  a  ship-owner  to  keep  on  board  a  sufficient  supply  of  medicines 
suitable  to  accidents  and  diseases  arising  on  sea  voyages  ;  that  the  duty  is  both  public 
and  private  ;  that  for  a  breach  of  that  duty  the  only  remedy  of  the  public  was  the  pen- 
alty provided  by  the  Act,  the  common-law  remedy  by  indictment  being  by  implication 
taken  away  ;  but  that  a  seaman,  serving  on  board  a  ship  at  the  time  of  the  breach,  was 
entitled  to  the  common-law  remedy  of  an  action  on  the  case,  notwithstanding  the 
penalty. 

By  The  Lands  Clauses  Consolidation  Act,  1845  (8  &  9  Vict.  c.  iS),  after  a  railway 
company  has  given  to  a  land-owner  a  notice  that  it  will  require  his  land  for  the  purposes 
of  its  line,  in  accordance  with  s.  18  of  the  Act,  the  duty  is  imposed  upon  the  company 
of  taking  the  proceedings  provided  for  by  the  Act  for  acquiring  the  land  and  paying  the 
purchase-money.     See  Haynes  v.  Haynes,  i  Dr.  &  Sm.  426,  and  cases  there  cited. 

The  decision  in  the  celebrated  case  of  Ashby  v.  White,  2  Ld.  Raym.  938,  i  Smith's 
L.  C.  (2d  ed.)  105,  involved  two  propositions,  namely,  first,  that  the  plaintiff,  being  a 
burgess  of  the  borough  of  Aylesbury,  was  entitled  as  such  to  vote  for  two  burgesses  to 
represent  that  borough  in  the  House  of  Commons  ;  secondly,  that  the  duty  was  imposed 
upon  the  defendants,  at  an  election  held  for  electing  such  burgesses,  of  receiving  and 
counting  the  votes  of  the  electors,  and  that  for  a  breach  of  that  duty  the  plaintiff  was 
entitled  to  maintain  an  action  on  the  case. 

IS 


226        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

namely,  the  heir  appointed  by  the  will  of  a  deceased  person ;  but 
when  the  Roman  empire  became  Christian,  and  the  Church  at 
length  obtained  exclusive  jurisdiction  over  the  estates  of  deceased 
persons,  it  was  by  a  law  of  the  Church  that  the  duty  was  imposed. 
This  duty  constitutes  the  only  legal  means  of  compelling  an 
executor  to  pay  legacies,  as  the  assets  out  of  which  tliey  are  to  be 
paid  vest  in  him  absolutely,  both  at  law  and  in  equity.  A  closely 
analogous  duty  is  that  imposed  by  the  Statute  of  Distributions  ^ 
upon  administrators  of  the  estates  of  intestates  to  divide  the  estate 
among  the  intestate's  next  of  kin.  Another  ancient  duty  (which, 
however,  no  longer  exists  in  English-speaking  countries)  was  the 
duty  imposed  by  the  canon  law  upon  every  tithe-payer  to  set  out 
the  tithes  payable  by  him,  /.  e.,  to  sever  the  tenth  part  from  the 
other  nine  parts,  and  to  set  apart  the  former  for  the  tithe-owner. 
It  was  by  means  of  this  duty  alone  that  payment  of  tithes  could 
be  enforced ;  for,  until  tithes  were  set  out,  the  title  to  the  entire 
produce  of  the  land  was  vested  in  the  tithe-payer,  but,  when  the 
tithes  were  set  out,  the  t-itle  to  the  tenth  part  vested  in  the  tithe- 
owner,  who  had  accordingly,  in  respect  to  it,  the  same  common- 
law  remedies  as  any  other  owner  of  chattels.  Another  ancient 
instance  is  the  duty  imposed  by  the  common  law  upon  the  heir  of 
a  deceased  person  to  assign  dower  to  the  widow  of  the  latter. 
Here,  again,  the  enforcement  of  this  duty  was  the  widow's  only 
resource,  as  the  title  to  all  the  land  of  which  her  husband  died 
seized  vested  in  the  heir,  both  at  law  and  in  equity.  Another  very 
numerous  class  of  duties  consists  of  those  which  are  imposed  upon 
all  persons  who  travel  upon  public  highways,  or  upon  navigable 
waters  (including  the  high  seas),  with  respect  to  other  persons 
with  whom  they  come  in  contact.  It  is  upon  these  duties  that  the 
rights  of  such  persons  as  against  each  other  wholly  depend.  Other 
instances  will  be  found  in  the  well-known  duties  imposed  by  the 
common  law  upon  common  carriers  and  innkeepers,  not  only  towards 
the  employers  of  the  one  and  the  guests  of  the  other,  but  also 
towards  all  those  who  desire  to  employ  the  one  or  to  become  the 
guests  of  the  other;  also  in  the  duty  imposed  by  the  common  law 
upon  professional  men,  and  upon  others  whose  callings  require  the 
exercise  of  special  skill,  to  exercise  reasonable  skill  on  behalf  of  all 
those  by  or  for  whom  they  are  employed.  In  the  cases  mentioned 
in  the  last  sentence,  there  may,  indeed,  be  a  liability  on  contract; 

1  22  &  23  Car.  II.  c.  10. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        227 

but,  on  the  other  hand,  in  many  of  those  cases  there  may  either  be 
no  contract,  or  none  that  can  be  proved,  while  the  duty  is  ahvays 
available,  and  never  involves  any  difficulty  as  to  proof. 

Domestic  or  family  relations  give  rise  to  a  numerous  class  of 
duties,  but  most  of  them  arc  moral  rather  than  legal,  or,  at  all 
events,  are  not  such  as  any  court  of  justice  will  enforce,  and  do 
not,  therefore,  come  within  the  scope  of  this  article. 

Another  very  numerous  and  important  class  of  cases  consists 
of  those  in  which  duties  are  imposed  upon  joint-stock  corpora- 
tions towards  their  shareholders,  and  also  towards  those  who 
establish  a  right  to  become  holders  of  their  shares.  As  a  rule, 
these  duties  furnish  the  only  means  by  which  these  two  classes 
of  persons  can  enforce  their  rights  against  the  corporation.  There 
may  be  exceptions  to  this  rule,  and  one  exception  certainly  is 
where  a  dividend  has  been  declared  (and  the  declaration  of  a 
dividend  is  the  performance  of  a  duty)  ;  for  then  the  amount 
payable  to  each  shareholder  becomes  a  debt,  and  so,  of  course, 
an  obligation. 

The  class  of  cases,  however,  in  which  an  alleged  breach  of  duty 
becomes  more  frequently  the  subject  of  litigation  than  in  all  other 
cases  put  together,  is  that  in  which  the  duty  imposed  is  to  exercise 
care  and  diligence  to  secure  the  safety  of  others,  or  to  avoid  being 
the  cause  of  personal  harm  to  others.  Such  a  duty  is  imposed 
upon  all  persons  to  whom  the  personal  safety  of  others  is  largely 
intrusted,  and  especially  upon  all  carriers  of  passengers,  A  simi- 
lar duty  is  also  imposed  upon  all  persons  whose  occupation  involves 
special  danger  to  the  public,  for  example,  upon  railway  companies, 
or  who  do  or  permit  to  be  done,  or  keep  or  permit  to  be  kept,  upon 
their  own  land,  what  is  fraught  with  a  like  danger.  A  breach 
of  this  duty  is  negligence,  and  whether  such  breach  has  been^ 
committed  is  the  question  to  be  tried  in  what  is  by  far  the  most 
numerous  class  of  litigated  cases  with  which  courts  of  justice  are 
troubled.  Negligence  may,  indeed,  be  a  breach  of  contract,  and 
it  may  also  be  one  of  the  elements  of  an  affirmative  tort,  namely, 
where  one  person  by  an  affirmative  act  unintentionally  causes 
harm  to  another,  but  might  have  avoided  doing  so  by  the  exercise 
of  reasonable  care.  It  would  not,  however,  be  too  much  to  say 
that,  in  ninety-nine  out  of  every  hundred  of  the  reported  cases 
involving  a  question  of  negligence,  the  alleged  negligence  was  a 
breach  of  duty. 

We  are  now  prepared  to  inquire  why  it  is  that  duties  have  at- 


228        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

tracted  so  little  attention.  Some  of  the  reasons  certainly  are  not 
far  to  seek.  In  several  particulars,  duties  bear  a  striking  resem- 
blance to  personal  rights.  The  latter  are  pure  creatures  of  the  law, 
and  are  not  in  the  least  dependent  upon  the  will  or  the  action  of  the 
person  to  whom  they  belong.  The  former  also  are  pure  creatures 
of  the  law,  and  are  not  directly  (though  they  may  be  indirectly) 
dependent  upon  the  will  or  the  action  either  of  the  person  upon 
whom  the  burden  of  them  is  imposed,  or  of  the  person  entitled  to 
have  them  performed.  Personal  rights  accompany  their  owner  from 
his  birth  to  his  death ;  and  while  that  is  not  true  of  duties,  yet 
it  is  true  of  every  duty  that  it  is  a  mere  legal  incident  of  certain 
situations,  that  a  person  can  avoid  incurring  liability  to  a  duty 
only  by  avoiding  the  situation  to  which  such  liability  is  incident 
(as  he  can  free  himself  from  a  duty,  to  which  he  has  once  incurred 
liability,  only  by  ceasing  to  occupy  the  situation  to  which  such 
liability  is  incident)  ;  and  that  a  person  can  acquire  a  right  to  the 
performance  of  a  duty  only  by  placing  himself  in  a  situation  to 
which  such  right  is  incident,  and  will  lose  the  right  whenever  he 
ceases  to  occupy  that  situation,  A  personal  right  can  neither  be 
bought,  nor  sold,  nor  be  the  subject  of  commerce,  nor  have  any 
pecuniary  value ;  and  so  also  the  right  to  have  a  duty  performed 
can  neither  be  bought,  nor  sold,  nor  be  the  subject  of  coinmerce, 
nor  have  any  pecuniary  value,  except  indirectly,  as  stated  above. 
As  courts  of  justice  can  have  no  occasion  to  take  cognizance  of 
personal  rights,  except  when  complaints  are  made  of  their  infringe- 
ment, so  also  the  same  thing  is  true  of  duties;  and  though  a  dut}', 
unlike  a  personal  right,  may  be  easily  formulated,  and  the  ques- 
tion of  its  existence  is  entirely  distinct  from  the  question  of  its 
infringement,  yet  the  former,  in  comparison  with  the  latter,  very 
seldom  arises,  and,  even  when  it  does  arise,  there  is  little  in  it  to 
stimulate  inquiry  beyond  the  mere  practical  question  whether  the 
person  charged  was  bound  to  do  the  thing  the  not  doing  of  which 
is  the  alleged  cause  of  action.  If  an  explanation  be  asked  of  the 
comparative  infrequency  with  which  any  question  as  to  the  exist- 
ence of  a  duty  arises,  it  may  be  answered  that  a  duty  once  exist- 
ing continues  to  exist  so  long  as  the  statute  which  imposed  it 
remains  in  force,  or  so  long  as  the  situation  which  gave  rise  to  it 
continues  to  exist ;  and  that,  while  an  obligation  as  a  rule  is  capable 
of  but  one  performance  and  one  breach,  and,  therefore,  when  once 
performed  or  once  broken,  is  at  an  end,  the  same  duty  may  be 
imposed  upon  an  unlimited  number  of  persons,  and  may  be  per- 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        229 

formed  an  unlimited  number  of  times,  and  hence  is  capable  of  an 
unlimited  number  of  breaches.^ 

Having  now  gone  through  with  the  different  classes  of  legal 
rights,  it  is  next  to  be  observed  that  a  relative  right  is  relative 
only  as  between  the  person  to  whom  the  right  belongs  and  the 
person  who  is  subject  to  the  correlative  obligation  or  duty;  and, 
therefore,  so  far  as  such  a  right  concerns  the  rest  of  the  world,  it 
is  an  absolute  right  of  the  second  class,  i.e.,  a  property  right. 
Moreover,  every  relative  right  which  has,  or  is  supposed  to  have,  a 
pecuniary  value,  does  or  may  concern  the  rest  of  the  world.  What 
relative  rights  then  have,  or  are  supposed  to  have,  a  pecuniary 
value?  Clearly,  all  obligations  fall  within  that  category;  and 
though  in  strictness  this  cannot  be  said  of  any  duty,  yet  some 
duties  consist,  in  whole  or  in  part,  in  transferring  money,  or  other 
things  of  value,  to  other  persons,  and  when  that  is  the  case,  and 
especially  when  the  duty  furnishes  the  only  legal  means  of  com- 
pelling such  transfer,  the  performance  of  the  duty  certainly  con- 
fers a  pecuniary  benefit  upon  the  person  in  whose  favor  it  is 
performed,  and  yet,  prior  to  its  performance,  the  only  legal  right 
vested  in  the  latter  is  the  right  to  have  the  duty  performed.  Of 
this  description  is  the  duty  of  an  executor  to  pay  legacies,  of  the 
administrator  of  an  intestate  to  divide  the  personal  estate  of  the 

1  I  now  proceed  to  do  what,  in  a  previous  note  (p.  220,  n.  i),  I  postponed  until  now, 
namely,  to  explain  why  I  used  the  terms  "  absolute  "  and  "  relative  "  to  mark  the  pri- 
mary division  of  legal  rights,  instead  of  the  terms  in  rem  and  in  personam,  i.  If  I 
had  used  the  latter  terms,  I  should  have  required  them  both  to  designate  relative 
rights,  and  should,  therefore,  have  had  nothing  left  for  aI)solute  rights;  for  rights  in 
personam  would  clearly  have  embraced  only  those  rights  which  are  created  by  personal 
obligations  and  duties,  and,  therefore,  I  must  have  used  the  term  in  rem  to  designate 
those  created  by  real  obligations.  2.  If  the  phrase  "  rights  in  personam  "  perfectly 
describes  all  those  rights  which  are  created  by  personal  obligations  or  duties,  then  the 
phrase  "  rights  /;/  retn  "  perfectly  describes  those  rights  which  are  created  by  real  obli- 
gations, when  considered  as  obligations  ;  and,  if  so,  it  is  clearly  impossible  that  it 
should  also  correctly  describe  absolute  rights.  3.  The  phrase  "  rights  in  rem  "  does 
not,  in  fact,  describe  correctly  either  class  of  absolute  rights.  It  might,  indeed,  be  used, 
without  any  great  impropriety,  to  describe  ownership  of  corporeal  things,  but  to  use  it 
to  describe  ownership  of  incorporeal  things  is  certainly  taking  great  liberties  with  lan- 
guage, and  to  use  it  to  describe  personal  rights  seems  to  me  to  be  in  the  highest 
degree  absurd.  4.  The  terms  iti  rem  and  in  personam  are  properly  applicable  to  pro- 
cedure only,  and  the  use  of  them  was  limited  to  procedure  by  the  Romans.  5.  The 
terms  "absolute"  and  "  relative,''  as  used  by  me,  require  neither  explanation  nor  justi- 
fication, while  the  terms  in  rem  and  /;/  personam,  if  used  for  the  same  purpose,  would 
have  required  both.  6.  The  terms  in  rem  and  in  personam,  as  applied  to  rights,  are 
wholly  foreign,  while,  in  using  the  terms  "  absolute  "  and  "  relative  "  instead,  I  follow 
the  example  of  Blackstone. 


230         A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

latter  among  his   next  of  kin,  and   of  a  tithe-payer   to    set   out 
tithes. 

Probably  many  persons  will  be  surprised  at  being  told  that  the 
legatees  and  next  of  kin  of  deceased  persons  have  no  right  or 
interest  in  the  estates  out  of  which  their  legacies  and  distributive 
shares  are  respectively  to  be  paid.  Their  surprise  ought,  however, 
to  cease  when  they  are  further  told  that,  by  the  Roman  law,  no 
one  could  directly  dispose  of  any  part  of  his  estate  by  will;  that 
when  a  person  died,  whether  testate  or  intestate,  his  entire  estate 
vested  absolutely  and  by  operation  of  law  in  his  heir,  namely,  in 
his  hcBres  natus  if  he  died  intestate,  and  in  his  h(zyes  factiis  if  he 
died  testate ;  that  property  could  be  given  by  will  only  in  the  form 
of  legacies,  and  that  legacies  could  be  given  only  indirectly, 
namely,  by  directing  the  heir  to  pay  them;  and,  lastly,  that  our 
executor  and  administrator  have  respectively  succeeded,  as  to  per- 
sonal estate,  to  the  situation  of  the  hczres  factiis  and  h(2rcs  natus 
of  the  Romans.  Hence  it  is  that,  while  the  real  estate  of  a  de- 
ceased person  passes,  upon  his  death,  directly  to  his  heir,  no  one 
can  acquire  any  interest  in  his  personal  estate  except  through  his 
executor  or  administrator,  i.  e.,  through  the  performance  of  a  duty 
imposed  upon  the  latter. 

It  follows  from  what  has  been  said  that  all  obligations,  whether 
personal  or  real,  and  also  such  duties  as  have  just  been  described, 
have  two  aspects,  /.  c,  they  are  to  be  regarded  as  relative  rights, 
or  as  absolute  rights,  according  to  the  point  of  view  from  which 
they  are  looked  at,  but  with  this  difference,  that,  while  personal 
obligations  and  duties  are  chiefly  to  be  regarded  as  relative  rights, 
real  obligations  are  chiefly  to  be  regarded  as  absolute  rights. 

It  is  now  necessary  to  return  to  the  subject  of  incorporeal 
things  which  may  be  owned,  —  of  which  it  has  thus  far  only  been 
said  that  they  constitute  no  part  of  the  material  world,  and  that  is 
no  more  than  saying  that  they  are  incorporeal. 

Ownership  of  corporeal  things  is  merely  the  result  of  appropri- 
ation by  individuals  to  themselves,  with  the  sanction  of  the  law,  of 
portions  of  the  material  world;  i.e.,  all  material  things  exist  in 
nature,  though  their  form  and  appearance  may  be  indefinitely 
changed,  and  their  value  in  consequence  indefinitely  increased  or 
diminished.  All  that  can  be  done,  therefore,  respecting  them  by 
human  will  or  human  action,  is  to  change  their  form  and  appear- 
ance, and  to  make  them  the  subjects  of  individual  ownership. 
Those  incorporeal  things,  however,  which  may  be  owned,  have  no 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         231 

existence  in  nature,  and  are  all,  therefore,  of  human  creation. 
Moreover,  they  are  all  created  either  by  the  State  alone,  or  by 
private  persons  with  the  authority  of  the  State.  A  private  person 
can  create  incorporeal  ownership  either  against  himself  or  against 
things  belonging  to  him.  He  does  the  former  whenever  he  incurs 
a  personal  obligation,  i.  c,  he  creates  in  the  obligee  a  relative  right 
as  between  the  latter  and  himself,  and  an  absolute  right  as  between 
the  obligee  and  the  rest  of  the  world.  So,  too,  a  private  person 
creates  an  absolute  right  against  himself  when  he  grants  an  annu- 
ity, and  in  that  case  there  is  no  relative  right.  A  private  person 
creates  an  incorporeal  property  right  against  a  thing  whenever  he 
creates  a  real  obligation,  i.e.,  imposes  an  obligation  upon  a  thing 
belonging  to  him;  for,  though  the  right  thus  created  is  relative  as 
between  the  obligee  and  the  thing  upon  which  the  obligation  is 
imposed,  yet  it  is  also  absolute,  not  only  as  to  all  persons  other 
than  the  owner  of  the  thing,  but  even  as  to  him.  In  case  of  some 
duties,  also,  a  private  person  may  contribute  to  the  creation  of 
incorporeal  ownership,  not  against  himself  personally,  nor  against 
things  belonging  to  him,  but  against  another  person,  though  in 
respect  of  things  belonging  to  himself,  as  when  a  testator  directs 
his  executor  to  pay  legacies  to  certain  persons  out  of  his  personal 
estate,  or  to  sell  certain  land  and  pay  the  proceeds  to  persons 
named,  the  land  not  being  devised  to  the  executor,  but  left  to 
descend  to  the  testator's  heir;  for  in  each  of  these  cases  the  law 
makes  it  the  duty  of  the  executor  to  do  as  the  testator  has  directed, 
and  this  duty  the  beneficiaries  can  compel  him  to  perform  ;  and 
this  right  in  the  beneficiaries  is  incorporeal  property. 

Another  important  class  of  cases  in  which  a  private  person  may 
create  incorporeal  ownership,  is  where  an  owner  of  things  grants 
to  another  person  an  authority  to  transfer  the  title  to  them,  or  to 
use  and  enjoy  them.  In  the  first  of  these  cases,  the  authority  is 
technically  called  a  power,  and  the  acts  authorized  to  be  done 
would,  without  such  authority,  be  inoperative  and  void.  In  the 
second  case,  the  authority  is  commonly  called  a  license,  and  the 
acts  authorized  to  be  done  would,  without  such  authority,  be  tor- 
tious. The  grantor  of  a  power  may  limit  the  persons  in  whose 
favor  it  may  be  exercised  (not  including  the  grantee),  or  he  may 
authorize  its  exercise  for  the  grantee's  own  benefit.  In  the  for- 
mer case,  the  grantee  of  the  power  is  not  entitled  to  receive  any 
pecuniary  benefit  from  its  exercise,  while,  in  the  latter  case,  the 
power  is  practically  equal  to  ownership  of  the  things  over  which 


232         A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

it  extends.  In  point  of  law,  however,  it  is,  in  each  case,  incor- 
poreal property,  i.  e.,  it  is  no  less  than  that  in  the  first  case,  and 
no  more  in  the  second.  In  the  first  case,  the  exercise  of  the 
power  may  be  discretionary  or  mandatory,  and,  if  mandatory,  its 
exercise  will  be  a  duty. 

A  license  is  commonly  granted  for  the  benefit  of  the  licensee, 
and  in  that  case  the  right  granted  differs  practically  from  owner- 
ship only  in  being  less  extensive.  It  may,  indeed,  differ  practi- 
cally from  ownership  only  in  not  being  exclusive ;  but  a  grant  by 
the  owner  of  a  thing  of  all  his  rights  as  such  owner  will  be  a  grant 
of  the  ownership  itself,  though  in  terms  a  license  only  be  granted. 
A  good  illustration  of  a  license  will  be  found  in  the  grant  of  a 
right  to  work  a  patent  for  a  new  invention,  neither  the  patent 
itself,  nor  any  part  of  it,  being  granted.  This  is  an  instance, 
moreover,  of  a  license  in  which  the  thing  to  be  enjoyed,  as  well 
as  the  right  to  use  and  enjoy  it,  constitutes  incorporeal  property. 
Another  good  illustration  will  be  found  in  a  grant  by  an  owner  of 
land  of  the  right  to  dig  in  his  land  for  minerals,  and  to  appropriate 
to  the  grantee's  own  use  all  the  minerals  dug  and  carried  away  by 
him.  Care  must  be  taken,  however,  not  to  confound  this  case 
with  that  of  a  grant  by  an  owner  of  land  of  all  the  minerals  under 
the  land,  the  latter  being,  as  has  been  seen,  a  grant  of  corporeal 
property.^ 

Another  instance  of  incorporeal  ownership  created  by  private 
persons  is  where  a  right  is  created  which  depends  upon  the  hap- 
pening of  a  condition.  Thus,  if  A  incur  an  obligation  to  B  to 
pay  him  $iOO  on  the  happening  of  some  uncertain  event,  the  obli- 
gation does  not  come  into  existence  until  the  event  happens,  and 
yet  B  has  a  fixed  right  to  be  paid  $iOO  by  A  in  case  the  event 
happens.  So,  if  A  give  B  a  legacy  of  $ioo  in  the  event  of  B's 
attaining  the  age  of  twenty-one  years,  the  gift  will  not  take  effect 
during  B's  infancy,  but  yet  he  will  have  a  fixed  right  to  have  the 
legacy  paid  to  him  by  A's  executor,  in  case  he  attains  the  age  of 
twenty-one  years.  So,  if  A  give  land  to  B,  but  declare  that,  if  B 
die  without  issue  then  living,  the  land  shall  go  to  C,  C  will  have 
nothing  in  the  land  during  B's  life,  but  yet  he  will  have  a  fixed 
right,  by  virtue  of  which  the  ownership  of  the  land  will  vest  in 
him  on  the  happening  of  the  event  named. 

There  is  still  another  kind  of  incorporeal  property,  created  by 

1  See  supra,  p.  221. 


A    BRIEF  SURVEY  OF  EQUTTY  JURISDICTION,        233 

private  persons,  which  is  very  different  from  any  hitherto  men- 
tioned, namely,  the  property  which  an  author,  musical  composer, 
or  artist  has  in  his  literary,  musical,  or  artistic  creations.  This  is 
not  a  right  conferred  upon  one  person  by  another  against  himself, 
or  against  things  belonging  to  him  ;  nor  is  it  a  right  against  any 
person  or  any  thing,  nor  is  it  dependent  upon  any  person  or  any 
thing;  but  it  is  property  which  has  a  more  independent  existence 
than  any  corporeal  thing  whatever,  —  which  a  person,  by  his  own 
intellectual  labor,  creates  in  himself  out  of  nothing.  It  consists, 
not  in  the  ideas  expressed  (which  cannot  be  the  subject  of  owner- 
ship), but  in  the  expression  of  them,  i.e.,  in  the  case  of  an  author 
or  musical  composer,  it  consists  in  the  selection  and  arrangement 
of  the  words  and  signs  by  which  the  ideas  are  expressed,  —  in  the 
case  of  an  artist,  it  consists  in  what  the  artist  embodies  in  his 
picture  or  statue. 

It  is,  however,  those  classes  of  incorporeal  property  which  are 
created  by  the  State  that  attract  the  most  attention.  Blackstone* 
enumerates  five  of  these,  namely,  advowsons,  tithes,  offices,  dig- 
nities, and  franchises,  i.  An  advowson  is  the  right  conferred  by 
the  State  upon  a  person  who  has  founded  and  endowed  a  church, 
and  upon  his  heirs  and  assigns  forever,  of  appointing  the  priest 
who  is  to  officiate  in  that  church.  Though  this  right  has  no  exist- 
ence in  this  country,  it  is  a  very  important  right  in  England,  as 
most  of  the  parish  churches  in  that  country  were  originally  founded 
and  endowed  by  the  lords  of  the  manors  in  which  they  are  respec- 
tively situated ;  and  hence  it  is  that  the  parson  of  a  parish  is  there 
generally  selected,  not  by  the  parishioners,  but  by  the  lord  of  the 
manor.  2.  "Tithes"  mean  either  the  things  received  under  that 
name,  or  the  right  to  receive  them,  and  that  right  is  created  by 
the  State,  and  is  incorporeal  property.  Like  other  property  rights, 
it  may  be  temporary  or  perpetual.  Presumably  all  the  tithes  pay- 
able in  any  parish  are  payable  to  the  parson  of  the  parish  for 
the  time  being,  and  they  ought  always  to  be  payable  to,  or  for  the 
benefit  of,  either  the  parson  of  the  parish,  or  other  persons  holding 
spiritual  offices,  and,  if  they  had  been,  they  would  never  have  made 
an  important  figure  as  a  species  of  incorporeal  property.  By  an 
abuse,  however,  they  were  permitted  to  be  alienated  in  fee  simple, 
and  vested  in  laymen ;  and  hence  they  became  subject  to  all  the 
usual  incidents  of  private  property.      3.    Most  offices  are  not  only 

1  2  Bl.  Com.  21. 


234        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

created  by  the  State,  but  the  right  to  hold  them,  as  well  as  the 
tenure  of  them,  is  regulated  by  law;  and,  therefore,  though  they 
are  in  their  nature  incorporeal  property,  yet  they  are  without  some 
of  the  most  usual  and  important  incidents  of  property,  as  they  can 
neither  be  bought  nor  sold.  They  are  also  usually  held,  especially 
in  this  country,  only  for  short  periods.  There  is  seldom,  therefore, 
a  serious  controversy  as  to  the  title  to  an  office,  unless  it  be  elec- 
tive ;  and  even  then  the  only  question  which  can  often  arise  is, 
whether  a  person  claiming  it  has  been  elected  to  it.  Regarded  as 
property,  an  office  is  peculiar  in  this,  namely,  that  all  the  emolu- 
ments which  are  incident  to  it  are  conferred  as  a  compensation  for 
duties  to  be  performed,' and  that  no  one  can  become  entitled  to 
receive  the  one  without  becoming  bound  to  perform  the  other. 
The  duties  which  the  holder  of  an  office  is  bound  to  perform  may, 
of  course,  become  the  subject  of  controversy;  and  so,  though  less 
frequently,  may  the  emoluments  to  which  he  is  entitled.  4.  When 
dignities  exist  in  a  State,  and  are  held  by  a  legal  title,  they  also 
constitute  a  species  of  incorporeal  property;  but  their  existence  in 
a  State  implies  that  the  people  of  that  State  are,  to  some  extent, 
ranked  and  graded  by  law;  and,  as  that  is  not  the  case  in  this 
country,  it  follows  that  dignities  have  no  legal  existence  here. 
5.  A  franchise  is  defined  by  Blackstone^  to  be  a  royal  privilege, 
or  branch  of  the  king's  prerogative,  subsisting  in  the  hands  of  a 
subject,  /.  e.,  by  virtue  of  the  king's  grant,  or  by  virtue  of  an  enjoy- 
ment so  long  continued  as  to  be  in  law  equivalent  to  a  grant.  It  is 
only  in  exceptional  cases  that  the  king's  prerogative  can  thus  be 
vested  in  a  private  person,  and  the  fact  that  it  can  be  done  in  those 
cases  calls  for  some  explanation.  The  explanation  seems  to  be 
that  certain  prerogatives  are  vested  in  the  king  merely  for  the 
benefit  of  the  general  public.  For  example,  the  convenience  of 
the  public  requires  that  certain  services  should  be  performed  for 
the  benefit  of  all  persons  who  require  their  performance,  and  who 
are  able  and  willing  to  pay  for  it;  and  the  problem  is  to  secure  the 
efficient  performance  of  such  services  for  a  fixed  and  reasonable 
compensation.  One  way  of  doing  this  is  for  the  government  itself 
to  assume  the  performance  of  the  service;  while  another  way  is 
for  the  government  to  delegate  the  performance  of  the  service  to 
private  persons  or  corporations,  making  it  the  duty  of  the  latter  to 
perform  the  service  efficiently  in  consideration  of  receiving  a  com- 

1  2  Bl.  Com.  37. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        235 

pensation,  cither  fixed  and  agreed  upon,  or  to  be  allowed  by  the 
government  for  the  time  being.  Of  course,  it  is  assumed  that  the 
principle  of  competition  is  inapplicable  to  the  case ;  for  if  it  were 
applicable,  there  would  be  no  problem  to  be  solved,  nor  anything 
for  the  government  to  do.  Moreover,  it  is  further  assumed  that 
the  very  opposite  principle  is  applicable,  namely,  that  of  monopoly  ; 
for  the  State  must  cither  not  interfere  at  all,  or  it  must  assert 
absolute  control,  i.e.,  it  must  either  leave  the  needs  of  the  public 
to  be  provided  for  by  free  and  unlimited  competition,  or  it  must 
make  it  unlawful  for  any  one  to  supply  such  needs  except  with  the 
permission  and  under  the  authority  of  the  State.  Accordingly, 
when  the  State  itself  undertakes  the  performance  of  a  service  for 
the  general  public,  it  always  maintains  a  monopoly  of  such  service, 
—  for  example,  that  of  carrying  the  mails.  When,  therefore,  the 
State  delegates  the  performance  of  a  public  service  to  a  private 
person  or  corporation,  it  ought  to  secure  to  the  latter  a  monopoly 
commensurate,  as  nearly  as  possible,  with  the  duty  imposed. 

It  is  upon  these  principles  that  most  franchises  exist  in  England 
at  the  present  day.  First,  a  monopoly  of  a  certain  public  service 
is  vested  in  the  Crown.  Then  the  Crown  by  its  grant  delegates 
the  performance  of  such  service  to  private  persons  or  corporations. 
Grants  of  a  right  to  keep  a  fair,  a  market,  or  a  ferry,  are  the  most 
conspicuous  instances;  and  every  such  grant  carries  with  it  by 
implication  the  exclusive  right  of  keeping  a  fair,  market,  or  ferry 
(as  the  case  may  be),  within  the  district  which  such  fair,  market,  or 
ferry  is  supposed  to  serve. 

Whatever  belongs  to  the  Crown  in  England  of  course  belongs 
to  the  State  in  this  country;  and  when  the  State  delegates  its 
power,  it  commonly  does  it,  not  by  a  grant,  but  by  law,  i.e.,  by  a 
statute ;  ^  and  yet  such  delegations  of  the  power  of  the  State  are 
commonly  called  franchises. 

Even  in  England,  a  grant  from  the  Crown  has,  in  modern  times, 
been  found  inadequate  in  many  cases  in  which  the  power  of  the 
State  is  delegated.  Thus,  when  an  ancient  ferry  is  superseded  by 
a  bridge,  and  it  is  yet  thought  desirable  that  the  bridge  should  be 
built  and  maintained  with  private  capital,  and  that  the  capital  thus 
expended  should  be  returned  in  tolls,  a  statute  is  found  necessary. 
So,  when  the  policy  was  successively  adopted  of  inviting  the  ex- 
penditure of  private  capital  in  building  and  maintaining  highways. 


1.  But  see  infra,  p.  237,  as  to  patent  rights. 


236        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

canals,  and  railways,  a  statute  was  always  indispensable,  as  all 
such  enterprises  involved  the  compulsory  taking  of  the  land  of 
many  persons.  Lastly,  the  needs  of  large  cities  have,  within 
recent  times,  introduced  several  species  of  public  service  which 
involve  an  interference  with  public  streets,  and  hence  the  right  to 
perform  such  services  can  properly  be  delegated  only  by  statute. 

In  this  country  a  strong  disposition  has  been  shown  to  delegate 
the  power  of  the  State,  not  to  particular  persons  or  corporations 
selected  by  the  legislature,  but  to  any  persons  who  shall  volunta- 
rily organize  themselves  into  corporations,  and  comply  with  certain 
prescribed  conditions.  This  is,  of  course,  upon  the  principle  of 
granting  equal  rights  to  all;  but  unfortunately  the  recognition 
of  that  principle  has  been  accompanied  by  an  abandonment  of  all 
attempt  to  protect  from  unjust  and  ruinous  competition  those  who 
have  invested  their  money  irrevocably  in  providing  means  and 
facilities  for  serving  the  public.  For  example,  when  one  set  of 
men  have  built  a  railway  from  A  to  B,  the  State  does  nothing  to 
prevent  another  set  of  men  from  building  another  railway  between 
the  same  points,  and  as  near  to  the  former  as  they  please. 

When  the  State  has  vested  in  a  corporation  a  right,  for  example, 
to  take  tolls  in  consideration  of  duties  to  be  performed,  as  such 
corporation  cannot  transfer  to  any  one  else  the  burden  of  the 
duties  which  it  has  assumed,  so  it  cannot  transfer  to  any  one  else 
the  right  which  was  designed  to  furnish  the  means  for  discharging 
those  duties  efficiently.  In  other  words,  such  a  right  is  inalien- 
able;  and,  therefore,  it  is  established  in  England  ^  that  a  railway 
company  can  transfer  by  way  of  mortgage  only  its  surplus  income, 
i.e.,  what  remains  for  its  creditors  and  shareholders  after  payment 
of  all  its  necessary  expenses.  Unfortunately,  however,  our  State 
legislatures  have  lost  sight  of  these  principles,  and  have  accord- 
ingly passed  .statutes  authorizing  railway  companies  to  mortgage 
all  their  property  and  "  franchises  ";  and  hence  receiverships  and 
re-organizations  of  railway  companies,  which  are  entirely  unknown 
in  England,  have  become  disastrously  familiar  in  this  country. 

It  has  been  seen  that  the  ancient  franchises  of  fairs,  markets, 
and  ferries,  as  well  as  many  modern  "  statutory  franchises,"  —  for 
example,  toll-bridges,  turnpike  roads,  canals,  and  railways,  —  have 
in  them  an  element  of  monopoly.  There  are  other  delegations  of 
sovereignty,  however,  which  are  monopolies  pure  and  simple,  /.  e., 

1  Gardner  v.  London,  Chatham  and  Dover  Railway  Co.,  L.  R.  2  Ch.  20i. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.        237 

delegations  of  an  exclusive  right  to  do  what  before  was  free  and 
open  to  all.  There  are  in  modern  times  two  classes  of  these  rights, 
namely,  patent  rights  and  copyrights.  They  are  peculiar,  not  only 
in  the  particular  just  stated,  but  also  in  being  conferred,  not  in 
consideration  of  duties  to  be  performed  to  the  public,  but  in  con- 
sideration of  services  already  rendered,  as  well  as  in  being  con- 
ferred only  for  limited  periods  of  time.  A  patent  right  is  conferred 
by  grant  (in  England  from  the  Crown,  in  this  country  from  the 
United  States),  though  under  statutory  authority.  A  copyright 
is  conferred  directly  by  statute.  A  copyright  must  be  sharply 
distinguished  from  the  common-law  right  of  an  author,  musical 
composer,  or  artist,  heretofore  mentioned.  The  latter  exists  only 
before  publication,  the  former  only  after  publication. 

Although  a  copyright  is  in  strictness  of  law  a  pure  monopoly, 
yet  it  ought  to  be  regarded,  not  as  a  favor  conferred,  but  as  a 
partial  atonement  for  the  wrong  done  by  the  State  in  putting  an 
end,  upon  publication,  to  the  common-law  right  of  an  author, 
musical  composer,  or  artist,  in  his  own  creation. 

Having  now  said  all  that  it  is  thought  necessary  to  say  of  incor- 
poreal things,  it  is  next  in  order  to  inquire  what  rights  are  affirm- 
ative in  their  nature,  and  what  are  negative.  If,  however,  we  can 
ascertain  what  rights  are  negative,  and  why,  the  inquiry  will  be 
fully  answered.  What  is  a  negative  right?  Clearly,  it  is  a  right 
against  some  person  or  persons,  i.e.,  a  right  not  to  have  some- 
thing done  by  him  or  them.  By  whom  can  such  a  right  be  given? 
Clearly,  only  by  the  person  against  whom  it  is  given,  or  by  some 
one  in  whose  power  such  person  is,  i.e.,  by  the  State.  How  can 
one  person  give  another  a  negative  right  against  himself?  Only 
by  incurring  a  negative  personal  obligation  to  that  other.  How 
can  the  State  give  a  negative  right  to  one  person  against  another? 
It  is  neither  easy  nor  necessary  to  specify  all  the  possible  wa)-s  in 
which  this  can  be  done.  How  does  the  State  in  fact  give  a  nega- 
tive right  to  one  person  against  another?  Only  by  giving  it 
against  all  persons  within  the  limits  of  its  territory,  or  some 
portion  of  that  territory,  i.e.,  by  giving  a  monopoly  or  exclusive 
right,  as  already  explained. 

It  follows,  therefore,  that  all  personal  rights,  all  property  rights, 
except  those  incorporeal  rights  by  which  the  State  confers  a 
monopoly,  and  all  relative  rights,  except  negative  personal  obliga- 
tions, are  affirmative.  If  it  be  asked  why  a  real  obligation  cannot 
confer  a  negative  right  against  the  thing  bound  by  it,  the  answer 


238        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

is  plain :  as  an  inanimate  thing  is  in  the  nature  of  things  incapa- 
ble of  acting,  it  is  impossible  that  a  real  obligation  should  ever 
consist  in  doing  (^faciendo)  ;  and,  though  it  is  possible  that  such  an 
obligation  should  consist  in  not  doing  (jion  faciendo),  yet  an  obliga- 
tion not  to  do  what  the  obligor  by  no  possibility  can  do,  is  absurd 
and  unmeaning,  and  therefore,  in  legal  contemplation,  cannot 
exist.  In  what,  then,  does  a  real  obligation  consist?  Here  again 
the  answer  is  plain :  it  consists  in  permitting  or  suffering  some- 
thing to  be  done  (^patiendd). 

But,  though  it  seems  so  clear  upon  principle  that  there  is  no 
such  thing  as  a  negative  real  obligation,  yet  it  is  far  less  clear 
upon  authority;  for  the  Civilians  all  say  there  is  such  a  thing,  and, 
in  so  saying,  they  are  supported,  to  some  extent,  by  texts  of  the 
Roman  law.  Thus,  in  Justinian's  Institutes,^  it  is  said  there  is  a 
servitude,  that  one  shall  not  build  his  house  higher,  lest  he  ob- 
struct his  neighbor's  lights  {lit  ne  altius  tollat  quis  cedes  suas,  ne 
liiminibus  vicini  officiatiu').  Upon  this  passage,  however,  it  may 
be  remarked,  first,  that  what  it  actually  expresses  is  a  personal 
obligation  binding  the  owner  of  the  house,  —  not  a  real  obligation 
binding  the  house  itself;  secondly,  that  one  is  tempted  to  say 
that  the  passage  is  only  an  inaccurate  mode  of  stating  an  affirma- 
tive servitude,  namely,  that  the  servient  tenement  is  bound  to 
permit  the  light  to  pass  over  it  without  obstruction  to  the  win- 
dows of  the  dominant  tenement. 

If  it  be  asked  why  a  duty  may  not  be  negative,  as  well  as  a  per- 
sonal obligation,  the  answer  is  that  a  person  can  deprive  himself 
of  the  right  to  do  a  thing  only  by  conferring  upon  some  one  else 
the  right  not  to  have  it  done,  —  which  he  can  do  only  by  incurring 
a  negative  personal  obligation  in  favor  of  the  latter;  but  when  the 
State  wishes  to  deprive  a  person  of  the  right  to  do  a  thing,  it  has 
a  much  more  direct  and  simple  (and  therefore  a  better)  way  of 
accomplishing  its  object  than  by  imposing  upon  him  a  duty  not 
to  do  it,  —  namely,  by  commanding  him  not  to  do  it,  and  so 
making  the  doing  of  it  an  affirmative  tort;  and,  as  the  State  is 
never  supposed  to  do  a  vain  and  nugatory  act,  nor  to  do  circui- 
tously  what  it  can  do  directly,  it  follows  that  the  State  can  never 
be  supposed  to  impose  a  negative  duty. 

1  L.  2,  Tit.  3,  s.  4. 


ARTICLE    X; 


Classification  of  Rights  and  Wrongs  {continued^. 

SOMETHING  still  remains  to  be  said  upon  the  subject  of 
rights,  but  it  will  be  convenient  first  to  consider  the  wrongs 
by  which  rights  may  be  infringed.^  Such  wrongs  are  divisible 
into  two  classes,  namely,  torts  and  breaches  of  obligation.  A  tort 
is  disobedience  to  a  command  of  the  State,  and  is  affirmative  or 
negative,  according  as  the  command  is  negative  or  affirmative,  the 
tort  being  in  that  respect  the  converse  of  the  command.  The  State 
commands  every  person  within  its  limits  to  do  no  act  which  will 
infringe  an  absolute  right  of  any  other  person,  i.e.,  it  prohibits  all 
such  acts.  Moreover,  such  acts  are  the  only  ones  which  the  State 
prohibits  in  the  interest  of  private  rights.  It  follows,  therefore, 
that  every  infringement  of  an  absolute  right  is  an  affirmative  tort, 
and  that  every  affirmative  tort  is  an  infringement  of  an  absolute 
right. 

It  will  be  seen,  therefore,  that  an  infringement  of  an  absolute 
right  is  equally  an  affirmative  tort,  whether  the  right  itself  be 
affirmative  or  negative ;  and  the  reason  is  that  the  infringement 
constitutes  equally,  in  either  case,  an  act  of  disobedience  to  a  pro- 
hibitory command  of  the  State.     The  only  important  difference 

1  13  Harv.  L.  Rev.  659. 

2  The  reader  must  not  suppose  that  a  person  whose  right  has  been  infringed  can 
sue  the  wrong-doer  directly  for  the  infringement ;  for  that  would  be  to  punish  him  for 
his  wrongful  act,  and  he  can  be  punished,  if  at  all,  by  the  State  alone.  All  that  the 
State  regards  the  person  wronged  as  entitled  to  is  a  compensation  for  the  wrong,  and 
such  compensation  it  will  compel  the  wrong-doer  to  make.  For  that  purpose,  how- 
ever, a  new  right  must  be  created,  and,  accordingly,  the  moment  an  obligation  is  broken 
or  a  tort  committed,  the  law  imposes  upon  the  wrong-doer  an  obligation,  in  favor  of 
the  person  wronged,  to  compensate  him  for  the  wrong,  and  it  is  upon  this  that  the  lat- 
ter sues.  Such  rights  are  created  solely  for  the  sake  of  the  remedy,  and  are.  therefore, 
commonly  called  remedial  rights.  It  is  scarcely  necessary  to  say  that  they  do  not  come 
within  the  scope  of  this  article. 


240        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

between  the  two  cases  is  that,  in  the  case  of  an  affirmative  right, 
the  right  exists  independently  of  the  command,  and  the  command 
is  issued  merely  to  protect  the  right,  while,  in  the  case  of  a  nega- 
tive right,  the  right  has  no  existence  until  the  command  is  issued, 
and  it  is  the  prohibitory  command  alone  that  both  creates  the 
right  and  makes  the  act  of  infringement  tortious.  This  difference 
between  an  affirmative  and  a  negative  right  is  attended  with  some 
important  consequences,^  but  they  do  not  relate  to  the  nature  of 
the  act  which  will  constitute  an  infringement  of  the  right. 

The  State  also  commands  every  person  within  its  limits  to  do 
every  act  which  the  State  makes  it  his  duty  to  do.  Indeed,  to 
command  one  to  do  a  thing,  and  to  make  it  his  duty  to  do  it,  are 
one  and  the  same  thing,  each  necessarily  implying  the  other. 
Moreover,  as  all  duties  are  affirmative,  all  commands  to  do  one's 
duty  are  also  affirmative,  and  these  are  the  only  affirmative  com- 
mands which  the  State  issues.  It  follows,  therefore,  that,  as  every 
breach  of  duty  is  a  negative  tort,  so  every  negative  tort  is  a  breach 
of  duty .^ 

An  impression  seems  always  to  have  prevailed  that  a  tort  must 
necessarily  be  an  affirmative  act ;  ^  and  the  explanation  of  this 
seems  to  lie  in  the  fact  that  duties  and  their  true  nature  have 
received  so  little  attention.  Certainly,  the  impression  appears  to 
rest  upon  no  more  solid  foundation,  for  no  reason  can  be  given 
for  regarding  disobedience  to  an  affirmative  command  as  any  less 
tortious  than  disobedience  to  a  negative  command.  At  all  events, 
there  is  no  doubt  whatever  that  every  breach  of  duty  is  a  tort. 
This  is  conclusively  proved  by  the  fact  that  the  only  action  that 


1  If  these  consequences  had  been  attended  to  by  the  authors  of  the  original  copy- 
right Act  (8  Anne,  c.  19),  and  the  Act  had  accordingly  been  so  drawn  as  to  revest  in 
the  authors  of  published  books  the  affirmative  right  which  they  were  supposed  to 
have  lost  by  publication,  instead  of  a  new  negative  right,  i.  e.,  the  exclusive  right  of 
multiplying  copies,  some  serious  evils  would  have  been  avoided.     See  i7ifra,  p.  249. 

2  As  the  infringement  of  a  private  duty  is  a  negative  tort,  so  the  infringement  of 
a  public  duty  is  a  negative  crime;  as  the  former  is  redressed  by  means  of  an  action  of 
tort,  so  the  latter  is  punished  by  means  of  an  indictment.  See  Couch  v.  Steel,  cited 
ante,  p.  225,  n.  i. 

3  Accordingly,  an  attempt  has  been  made  to  give  the  breach  of  a  duty  the  appear- 
ance of  an  affirmative  tort  by  terming  it  a  subtraction.  Thus,  Blackstone  considers  the 
breach  of  any  duty  which  is  imposed  upon  one  person  for  the  benefit  of  land  belong- 
ing to  another  as  a  fifth  species  of  injury  to  real  property  (the  first  four  being  ouster, 
trespass,  nuisance,  and  waste),  and  he  treats  of  such  breaches  in  B.  3,  c.  15,  —  which 
chapter  is  entitled,  "  Of  Subtraction."  So  the  canonists  speak  of  the  subtraction  of 
tithes,  of  legacies,  of  conjugal  rights,  and  of  church  rates. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.        24 1 

will  lie  for  a  breach  of  duty  is  the  Action  on  the  Case;  ^  and  this 
again  is  not  the  least  convincing  proof  of  the  correctness  of  the 
view  heretofore  stated  as  to  the  legal  nature  of  a  duty,  and  as  to 
the  radical  difference  between  a  duty  and  an  obligation.^  It  also 
explains  a  phenomenon  which  has  caused  much  difficulty  to  courts 
and  lawyers,  namely,  that,  in  certain  classes  of  actions,  in  which 
the  defendant  has  committed  no  affirmative  wrong,  —  for  example, 
actions  against  common  carriers,  innkeepers,  or  professional  per- 
sons, —  the  plaintiff  often  has  an  option  between  framing  his  ac- 
tion in  contract  and  in  tort.  It  also  explains  the  fact  that  certain 
classes  of  torts  may  be  affirmative  or  negative,  according  as  they 
consist  of  affirmative  acts  or  of  mere  breaches  of  duty;  for  exam- 
ple, any  tort  committed  by  a  tenant  for  life  or  for  years  as  such, 
against  the  owner  of  the  reversion,  is  termed  waste;  and  this  may 
consist  either  of  affirmative  acts  which  injure  the  reversion  (/.  c, 
wilful  or  voluntary  waste),  or  in  a  failure  to  perform  the  duty  of 
keeping  the  property  in  as  good  a  condition  as  it  was  in  when  it 
first  came  into  the  tenant's  possession  (/.  e..,  involuntary  or  permis- 
sive waste). 

The  infringement  by  an  obligor  of  the  right  created  by  a  per- 
sonal obligation  incurred  by  him  is  the  only  infringement  of  a 
right  which  does  not  constitute  a  tort,  and  hence  it  is  distinguished 
from  all  others  by  being  termed  simply  a  breach  of  obligation. 
Hence  also  the  remedy,  for  it  is  not  (as  for  the  infringement  of  all 
other  rights)  an  action  ex  delicto,  but  an  action  ex  contractu.  This 
seems  to  prove  conclusively  that  the  State  is  not  supposed  to  com- 
mand the  performance  of  obligations.  It  also  proves  the  existence 
of  the  wide  difference  between  obligations  and  duties  which  has 
been  herein  contended  for.^ 

As  torts  are  affirmative  or  negative,  according  as  the  commands 
which  they  infringe  are  negative  or  affirmative,  the  one  being 
the  converse  of  the  other,  so  breaches  of  obligation  are  negative 
or  affirmative,  according  as  the  obligation  is  affirmative  or  negative, 
the  one  being  the  converse  of  the  other. 

It  remains  to  speak  of  the  infringement  of  relative  rights  re- 
garded as  absolute  rights.  Such  infringements  always  constitute 
affirmative  torts ;  *  but  they  chiefly  occur  in  connection  with  real 
obligations.     Indeed,  as  real  obligations  consist  merely  in  author- 

^  See  supra,  p.  225,  n.  i.  2  ggg  supra,  pp.  224-25. 

^  See  supra,  pp.  224-25. 

*  See  Lumley  v.  Gye,  2  El.  &  Bl.  216 ;  Bowen  v.  Hall,  6  Q.  B.  D.  m. 

16 


242        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

izing  something  to  be  done,  the  doing  of  which  the  obligor  (being 
an  inanimate  thing)  has  no  power  to  prevent  or  even  obstruct,  it 
may  be  correctly  said  that  a  real  obligation  is  incapable  of  being 
broken  ;  and,  therefore,  every  infringement  of  the  right  created  by 
a  real  obligation,  whether  it  be  by  the  owner  of  the  res,  which  is 
subject  to  the  obligation,  or  by  a  stranger  to  the  obligation,  is 
necessarily  an  affirmative  tort. 

It  has  been  seen  that,  in  the  case  of  personal  obligations  and 
duties,  the  infringement  of  the  right  is  precisely  the  converse  of 
the  right  itself,  and,  therefore,  if  one  knows  what  the  right  is,  he 
will  necessarily  know  what  will  be  an  infringement  of  it;  and,  if 
one  knows  what  will  be  an  infringement  of  the  right,  he  will  also 
know  what  the  right  itself  is.  An  infringement  is  not  necessarily, 
indeed,  coextensive  with  the  right,  but,  so  far  as  the  infringement 
goes,  the  correspondence  between  it  and  the  right  is  perfect.  In 
the  case  of  absolute  rights,  however,  i.  e.,  in  all  cases  in  which  the 
infringement  of  the  right  is  an  affirmative  tort,^  the  correspondence 
is  not  between  the  right  and  its  infringement,  but  between  the  lat- 
ter and  a  prohibitory  command  issued  by  the  State  for  the  protec- 
tion of  the  right.  While,  therefore,  the  fact  that  an  affirmative 
tort  has  been  committed  is  sure  proof  that  the  act  which  consti- 
tuted it  had  been  prohibited,  and  also  that  the  right  which  it  in- 
fringed was  neither  an  obligation  of  the  person  committing  the  act, 
nor  a  duty  imposed  upon  him,  it  does  not  necessarily  furnish  any 
further  proof  as  to  the  nature  or  extent  of  the  right  infringed.  Nor 
will  the  most  perfect  knowledge  of  the  nature  and  extent  of  a  right, 
any  infringement  of  which  will  be  an  affirmative  tort,  necessarily 
enable  one  to  say  what  acts  will,  and  what  will  not,  constitute  an 
infringement  of  the  right.  It  follows,  therefore,  that,  in  order  to 
determine,  in  a  given  case,  whether  an  affirmative  tort  has  or  has 
not  been  committed,  it  may  be  necessary,  first,  to  identify  the  right 
which  has  been  infringed  (if  there  have  been  an  infringement),  and 
to  ascertain  its  legal  nature  and  extent,  and,  secondly,  to  ascertain 
whether  the  act  which  has  been  committed  is  an  infringement  of 
that  right;  and  the  accomplishment  of  the  first  of  these  objects 
may  afford  no  material  aid  in  accomplishing  the  second. 

There  is  also  another  reason  why  an   affirmative  tort  is  apt  to 

involve  greater  legal  difficulty  than  a  negative  tort  or  a  breach  of 

obligation,  namely,  that  it  is  more  difficult  to   identify  the  right 

infringed,  and  ascertain  its  legal  nature  and  extent.     Obligations 

1  There  is,  however,  one  exception  to  this.     See  hi/ra,  pp.  248-49. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        243 

and  duties  arc  all  of  human  creation,  and  it  is  the  business  of  those 
who  create  them  to  mark  out  their  extent ;  and,  if  they  neglect  to 
do  so,  they  are  liable  to  be  visited  with  the  consequences  of  their 
negligence.  Hence  it  seldom  happens,  when  an  obligation  or 
duty  is  admitted  to  exist,  that  any  question  arises  as  to  its  extent ; 
and  it  is  scarcely  possible  in  the  nature  of  things  that  any  question 
should  arise  as  to  its  identity.  Persons  and  other  corporeal  things, 
on  the  other  hand,  exist  in  nature,  and  the  rights  to  which  they 
give  rise  have  always  and  everywhere  existed,  and  the  State  has 
seldom  done  more  than  passively  recognize  their  existence.  As  to 
personal  rights,  the  State  does  not,  as  has  been  seen,^  attempt  to 
enumerate,  define,  or  limit  them,  nor  even  to  ascertain  their  exist- 
ence further  than  is  from  time  to  time  found  necessary  for  the 
purpose  of  protecting  them.  As  to  corporeal  things,  other  than 
human  beings,  the  State  recognizes  individual  ownership  of  them, 
and,  as  to  movable  things,  this  seems  to  be  all  that  is  necessary; 
but  individual  ownership  of  land  implies  a  division  of  it  among  its 
different  owners,  and  accordingly  the  State  recognizes  any  division 
which  the  owners  may  make,  and,  if  they  cannot  agree  upon  a 
division,  the  State  itself  makes  the  division  ;  and  thus  the  lateral 
extent  of  each  person's  ownership  may  be  definitely  ascertained. 
But  it  is  also  necessary  to  ascertain  how  far  the  individual  owner- 
ship of  land  extends  vertically,  and,  as  to  that,  the  State  has 
established  the  rule  that  it  extends  downwards  to  the  centre  of  the 
earth,  and  upwards  to  the  heavens  {jisque  ad  ccelujii)^  and  also 
that  this  is  presumptively  the  vertical  extent  of  the  ownership  of 
every  person  who  owns  the  surface  of  a  given  piece  of  land,  though 
the  contrary  may  be  proved.  The  State  also  permits  an  owner  of 
land,  as  such,  as  we  have  seen,  to  acquire  rights  in  the  land  of  his 
neighbor,  —  which  rights  the  State  declares  to  be  accessory,  ap- 
pendant, or  appurtenant  to  his  ownership  of  his  own  land,  and 
which  are  known  in  our  law  as  easements  and  profits. 

Perhaps  the  reader  will  think  there  is  nothing  in  the  foregoing 
to  cause  any  uncertainty  or  confusion  in  regard  to  rights  of  prop- 
erty in  land,  and  perhaps  also  he  will  be  right  in  so  thinking. 
Unfortunately,  however,  uncertainty  and  confusion  do  exist  upon 
this  subject,  whatever  may  be  their  cause,  and  it  is  hoped  that  the 
following  observations  will  have  a  tendency  to  lessen  them. 

First.     Ownership  of  Blackacre  (for  example)  constitutes  only  a 

1  See  supra,  p.  220.  2  See  supra,  p.  221. 


244        A    BRIEF  Sl/RVEV  OF  EQUITY  JURISDICTION. 

single  legal  right.  It  may  be  said,  indeed,  that  such  ownership 
gives  to  the  person  in  whom  it  is  vested  a  right  to  do  a  great 
variety  of  things,  but  that  only  means  that  it  enables  him  to  do 
them  without  committing  a  tort,  and  that  it  renders  tortious  any  act 
which  prevents  his  doing  them,  or  obstructs  him  in  doing  them  ; 
and  it  is  by  virtue  of  the  one  right  of  ownership  that  any  act  done 
by  the  owner  of  Blackacre  is  rightful,  which  without  such  owner- 
ship would  be  tortious ;  and  it  is  the  same  one  right  that  is 
infringed  by  any  act  which  is  a  tort  to  the  owner  of  Blackacre  as 
such,  and  which,  in  the  absence  of  such  ownership,  would  be  right- 
ful as  against  him. 

Secondly.  If,  therefore,  the  owner  of  Blackacre  has  two  or  more 
rights,  which  are  liable  to  affect  the  legal  relations  between  him 
as  the  owner  of  Blackacre  and  the  owner  of  Whiteacre,  which 
adjoins  Blackacre,  it  is  because  he  has  one  or  more  rights  in 
Whiteacre,  —  which  rights  are  appendant  or  appurtenant  to  such 
ownership.  Moreover,  such  rights  must  have  been  acquired  either 
by  the  present  owner  of  Blackacre,  or  by  some  preceding  owner, 
and  they  can  have  been  acquired  only  in  two  ways,  namely,  either 
by  grant  from  a  person  who  had  the  power  to  create  the  right,  i.  e., 
from  the  owner  of  Whiteacre,  or  by  prescription,  i.  c\,  by  enjoyment 
so  long  continued  as  to  be  in  law  equivalent  to  a  grant. 

It  follows,  therefore,  that  the  so-called  right  of  support  from 
adjoining  land,  whether  for  land  or  for  buildings,  has  no  existence 
as  a  right  separate  and  distinct  from  the  ownership  of  the  land  or 
buildings  to  be  supported,  unless  it  be  a  right  in  the  land  which  is 
to  give  the  support,  and  that  such  a  right  can  exist  only  by  a  grant 
from  the  owner  of  such  land  or  by  prescription.  It  also  follows 
that  the  so-called  right  of  support  for  land  from  adjoining  land, 
whether  the  support  be  lateral  or  vertical,  has  no  existence  as  a  right 
in  the  land  which  is  to  give  the  support,  as  it  is  admitted  that 
such  right,  if  it  exists  at  all,  exists  independently  of  either  grant 
from  the  owner  of  such  land  or  of  prescription.  It  also  seems  to 
follow  that  the  so-called  right  to  support  from  adjoining  land  for 
buildings,  whether  the  support  be  lateral  or  vertical,  cannot  exist, 
except  as  a  right  in  the  land  which  is  to  give  the  support,  and 
that,  as  such  a  right,  it  cannot  exist  by  prescription,  unless  the 
support  enjoyed  be  such  as  would  have  enabled  the  owner  of  the 
land  giving  the  support,  prior  to  the  acquisition  of  the  right,  to 
maintain  an  action  for  an  affirmative  tort,  and  that  is  something 
which  practically  never  happens. 


A   BRIEF  SURl'EY  OF  EQUITY  JURISDICTION.         245 

It  also  follows  that  there  is  no  such  thing  as  the  ownership  of  a 
strcanrt  of  water  which  flows  over  one's  land,  or  of  that  part  of  it 
which  flows  over  one's  land,  separate  from  the  ownership  of  the 
land  of  which  it  forms  a  part,  though  there  may  be  a  right  in  the 
land  of  one's  neighbor,  in  respect  of  such  stream,  and  such  right 
may  consist  (for  example)  either  in  a  right  to  prevent  the  natural 
flow  of  the  stream  from  the  land  above  to  one's  own  land,  or  in  a 
right  to  prevent  its  regular  and  natural  flow  from  one's  own  land  to 
the  land  below.^ 

While,  however,  the  ownership  of  Blackacre  constitutes  only  one 
legal  right,  yet  that  right  may  be  infringed  in  many  ways.  It  has 
just  been  seen,  for  example,  that  such  ownership  enables  the  person 
in  whom  it  is  vested  to  do  a  variety  of  acts,  and  it  may  now  be 
added  that  the  State  forbids  any  other  person  either  to  do  any 
of  those  acts,  or  to  obstruct  the  owner  in  doing  any  of  them,  and 
any  disobedience  of  this  command  will,  of  course,  be  an  afifirmative 
tort  committed  against  the  owner  of  Blackacre  as  such.  Suppose, 
then,  A  and  B  are  adjoining  owners  of  land,  and  A  makes  an 
excavation  in  his  land,  and  thereby  causes  the  soil  of  B  to  fall 
into  the  excavation.  Does  A  thereby  infringe  B's  right  of  owner- 
ship? It  is  clear,  both  upon  principle  and  authority ,2  that  he  does. 
What  is  the  nature  of  the  tort  which  he  commits?  Clearly,  it  is 
trespass  qiiare  clausum  f regit ;  for,  though  he  does  not  personally 
enter  B's  close,  yet  the  physical  effect  of  his  act  extends  into  it,  and 
thus  produces  important  consequences.  Suppose  A,  by  means  of 
artificial  support,  prevents  B's  soil  from  falling  into  the  excava- 
tion? Then  A  commits  no  tort;  and  this  proves,  if  proof  be  needed, 
that  B  has  no  right  in  A's  land.  Suppose  the  excavation  produces 
no  effect  upon  B's  land  for  two  years,  but  at  the  end  of  two  years 
B's  soil  falls  into  the  excavation  ?  It  is  settled  by  the  highest 
authority^  that  the  whole  tort  is  committed  at  the  latter  date,  and 
consequently  that  the  Statute  of  Limitations  then  first  begins  to 


1  Wright  V.  Howard,  I  Sim.  &  Stu.  190 ;  Mason  v.  Hill,  3  B.  &  Ad.  304,  5  idem  i. 

2  Gale  on  Easements,  Part  3,  c.  4,  s.  i,  of  the  6th  and  7th  eds.,  and  Part  i,  c.  6,  s.  4, 
subs.  I,  of  the  previous  eds. 

8  Bonomi  v.  Backhouse,  E.  B.  «S:  E.  622,  646,  9  H.  L.  Cas.  503.  The  decision  of  this 
case  in  the  Queen's  Bench  was  in  the  defendant's  favor,  Wightman,  J. .dissenting;  but, 
on  error  to  the  Exchequer  Chamber,  the  judgment  was  unanimously  reversed.  On  error 
to  the  House  of  lords,  the  judges  were  summoned,  and  they  delivered  their  unanimous 
opinion  in  favor  of  affirming  the  judgment  of  the  Exchequer  Chamber,  and  for  the 
reasons  given  by  that  court.  The  House  itself  also  took  the  same  view,  and,  therefore, 
tlie  judgment  was  unanimously  affirmed. 


246        A   BRIEF  SURVEY  OF  EQUITY  'JURISDICTION. 

run  in  favor  of  A ;  and  this  proves  that  the  tort  consists,  not  in 
making  the  excavation,  but  in  causing  B's  soil  to  fall  into  it,  and 
consequently  that  the  right  infringed  is  B's  ownership  of  his  own 
land,  and  not  any  right  of  his  in  A's  land. 

Suppose  the  surface  of  certain  land  belongs  to  A,  while  all  the 
minerals  under  the  surface  belong  to  B,  or  that  the  upper  part  of 
a  house  belongs  to  A,  while  the  lower  part  belongs  to  B,  and  B  so 
conducts  his  mining  as  to  cause  A's  soil  to  sink,  or  so  conducts 
the  repairs  of  his  part  of  the  house  as  to  cause  A's  part  to  fall? 
It  must  be  regarded  as  settled  by  authority  ^  that  B  will  be  liable 
to  A  in  either  case;   and  yet  it  is  assumed  that  A  has  acquired  no 
right  in  B's  part  of  the  land,  nor  in  his  part  of  the  house,  whether 
by  reservation,  grant,  or  prescription  ;  and,  therefore,  it  must  follow 
that  the  causing  of  the  surface  of  the  land  to  sink,  or  of  the  upper 
part  of  the  house  to  fall,  is  a  tort  to  A's  right  of  ownership.      It 
seems  also  to  be  so  upon  principle;  for,  if  the  State  is  to  permit  so 
artificial  and  inconvenient  a  division  of  land  or  houses  to  be  made 
between  different  owners,  it  must,  in  all  reason,  afford  some  protec- 
tion to  one  who  owns  the  surface  only  of  land,  or  the  upper  part 
only  of  a  house ;  and,  therefore,  the  State  is  supposed  to  forbid  the 
owner  of  the  minerals,  in  the  first  case,  to  do  anything  which  shall 
cause  the  surface  of  the  land  to  sink,  and  to  forbid  the  owner  of 
the  lower  part  of  the  house,  in  the  second  case,  to  do  anything 
which  shall  cause  the  upper  part  to  fall.     It  seems  also  that  the 
State  is  supposed  to  impose  upon  the  owner  of  the  lower  part  of 
the  house  the  duty  of  keeping  it  in  such  a  state  of  repair  that 
it  will  afford  a  sufficient  support  for  the  upper  part. 

Suppose  A  and  B  are  adjoining  owners  of  land,  and  B  builds  a 
house  on  his  land  extending  to  the  boundary  line  between  B  and  A, 
and  then  A  makes  an  excavation  in  his  land,  but  leaves  a  space 
between  the  excavation  and  the  boundary  line  which  would  have 
been  sufficient  to  prevent  B's  soil  in  its  natural  state  from  falling, 
but  which  proves  insufficient  to  support  the  land  with  the  house 
on  it,  and  consequently  the  house  falls?  It  is  generally  admitted'-^ 
that  A  is  not  to  be  regarded  as  having  caused  B's  house  to  fall, 


1  Humphries  v.  Brogden,  12  Q.  B.  739,  and  see  Rowbotham  v.  Wilson,  8  H.  L.  Cas. 

348. 

■■2  However,  in  Angus  v.  Dalton,  6  A.  C.  740,  804,  Lord  Penzance  said  :  "  If  this  mat- 
ter were  res  httegra,  I  think  it  would  not  be  inconsistent  with  legal  principles  to  hold, 
that  where  an  owner  of  land  has  used  his  land  for  an  ordinary  and  reasonable  purpose, 
such  as  placing  a  house  upon  it,  the  owner  of  the  adjacent  soil  could  not  be  allowed  so 
to  deal  with  his  own  soil  by  excavation  as  to  bring  his  neighbor's  house  to  the  ground." 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        247 

and  so  has  not  infringed  B's  right  of  ownersliip,  and,  therefore,  that 
he  is  not  hable  to  B,  unless  the  latter  has  acquired  by  prescription 
or  grant  a  right  in  the  land  of  A  to  have  his  house  supported  by- 
it;  and  it  seems  to  be  clear  upon  principle  that  no  such  right 
can  be  acquired  by  prescription,  unless  it  can  be  shown  that  the 
pressure  of  the  house,  prior  to  the  acquisition  of  the  right,  caused 
such  a  disturbance  of  A's  soil  as  to  render  B  liable  in  trespass; 
but  tliis  cannot  be  asserted  upon  authority.^ 

If  the  owner  of  Blackacre  have  rights  in  Whiteacre,  which  adjoins 
Blackacre,  and  the  owner  of  Whiteacre  commit  an  affirmative  tort 
against  the  owner  of  Blackacre,  how  shall  it  be  ascertained  whether 
the  right  infringed  is  the  ownership  of  Blackacre,  or  some  right 
which  such  owner  has  in  Whiteacre?  By  ascertaining  whether 
the  tort  was  committed  on  Blackacre  or  on  Whiteacre ;  and  this 
depends,  not  upon  where  the  act  which  constitutes  the  tort  was 
done,  but  where  it  produced  its  tortious  effect.  Thus,  if  the  tort 
consist  in  making  soap  on  Whiteacre,  or  in  manufacturing  thereon 
bones  into  a  fertilizer,  or  in  burning  bricks  thereon,  or  in  fouling  the 
water  of  a  stream  which  flows  through  Whiteacre,  and  thence  into 
Blackacre,  and  sending  it  into  Blackacre  in  its  foul  condition,  or  in 
making  a  dam  in  a  stream  which  flows  from  Blackacre  into  White- 
acre,  and  thereby  flooding  Blackacre,  —  in  each  of  these  cases,  it 
is  plain  that,  while  the  tortious  act  is  committed  on  Whiteacre,  yet 
its  tortious  effect  is  produced  wholly  on  Blackacre,  and  hence  the 
right  infringed  is  the  ownership  of  Blackacre.  On  the  other  hand, 
if  the  tort  consist  in  erecting  a  house  on  Whiteacre  by  which  the 
access  of  light  and  air  to  ancient  windows   on    Blackacre  is  ob- 

1  Angus  V.  Ualton,  3  Q.  B.  D.  85,  4  idem  162,  6  A.  C.  740.  In  this  case,  it  was  finally 
held  that  a  right  to  lateral  support  from  adjoining  land  may  be  acquired  by  twenty  years' 
uninterrupted  enjoyment  for  a  building  proved  to  have  been  newly  built,  or  altered  so  as 
to  increase  the  lateral  pressure,  at  the  beginning  of  that  time  ;  and  that  it  is  so  acquired 
if  the  enjoyment  is  peaceable,  and  without  deception  or  concealment,  and  so  open  that 
it  must  be  known  that  some  support  is  being  enjoyed  by  the  building.  There  was,  how- 
ever, much  diversity  in  the  views  expressed  by  the  judges,  and  still  more  in  the  reasons 
by  which  they  supported  them.  In  the  Queen's  Bench  Division,  one  judge  was  for  the 
plaintiff  and  two  for  the  defendant ;  in  the  Court  of  Appeal,  two  for  the  plaintiff  and  one 
for  the  defendant.  And,  though  the  judges  who  delivered  opinions  in  the  House  of 
Lords  agreed  substantially  in  their  conclusions,  yet  they  differed  greatly  in  their  reasons, 
and  one  of  them  (Lord  Justice  Fry),  while  holding  himself  bound  by  the  authorities  to 
declare  his  opinion  in  favor  of  the  plaintiff,  yet  also  declared  the  rule,  which  he  con- 
ceived to  be  established  by  those  authorities,  to  be  absurd  and  irrational,  and  one 
member  of  the  House  (Lord  Penzance)  entirely  agreed  with  him.  These  circumstances 
do  not,  indeed,  derogate  from  the  authority  of  the  decision  within  the  United  Kingdom, 
but  elsewhere  it  is  conceived  that  they  ought  to  affect  its  authority  very  materially. 


248         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 


structed,  or  in  obstructing  a  way  which  the  owner  of  Blackacre  has 
over  Whiteacre,  it  is  plain  that  the  tortious  effect  of  the  wrongful 
act  is  produced  on  Whiteacre ;  and,  therefore,  the  right  infringed  is 
the  easement  of  light  and  air  in  the  first  case,  and  the  right  of  way 
in  the  second  case.^  In  the  second  case,  also,  the  owner  of  White- 
acre,  if  he  wishes  to  contest  the  right  claimed  by  the  owner  of 
Blackacre,  may,  instead  of  obstructing  the  way,  sue  the  owner  of 
Blackacre  for  trespass  qnare  clausiim  f regit ;  and  then  the  owner 
of  Blackacre  will  have  to  set  up  as  a  defence  the  right  of  way  which 
he  claims.  In  case  of  some  easements,  moreover,  this  is  the  only 
course  open  to  the  owner  of  Blackacre.  Thus,  jn  the  case  just  put 
of  fouling  the  water  of  a  stream,  as  well  as  in  that  of  erecting  a 
dam  across  a  stream  in  W'hiteacre,  and  thereby  flooding  Blackacre, 
the  owner  of  Blackacre  has  no  means  of  preventing  the  act  which 
he  claims  to  be  wrongful,  and,  therefore,  if  he  wishes  to  contest 
the  right  of  the  owner  of  Whiteacre  to  do  as  he  has  done,  the  only 
course  open  to  him  is  to  sue  the  latter,  and  thus  compel  him  to  set 
up  as  a  defence  the  right  which  he  claims. 

The  ownership  of  incorporeal  things  differs,  in  respect  to  its 
infringement,  from  that  of  corporeal  things,  for  the  former  can  be 
infringed  only  by  interfering  with  the  owner's  enjoyment  of  the 
thing  owned  ;  and,  therefore,  in  order  to  ascertain  in  how  many  and 
what  ways  such  a  right  can  be  infringed,  one  must  ascertain  in 
how  many  and  what  ways  it  can  be  enjoyed.  The  common  law  right 
of  an  author  in  his  literary  creations  furnishes  a  good  illustration  of 
this.  An  ordinary  literary  composition  can  be  enjoyed  by  its  author 
to  his  profit  in  only  one  way,  namely,  by  printing  and  selling  copies 
of  it;  and,  therefore,  it  is  only  by  multiplying  copies  of  it  without 
the  author's  leave  that  his  right  can  be  infringed.  The  author  of 
a  dramatic  composition  may,  however,  enjoy  it  to  his  profit  in 
another  way,  namely,  by  producing  it  on  the  stage,  and,  therefore, 
his  right  may  be  infringed  either  by  multiplying  copies  of  his  com- 
position, or  by  producing  it  on  the  stage,  without  his  leave. 

There  is,  moreover,  one  species  of  incorporeal  ownership  which 
is  like  a  relative  right  in  this  respect,  that  it  can  be  infringed  in 


1  These  distinctions  were  lost  sight  of  by  Sir  L.  Shadwell,  V.  C,  in  delivering  his 
judgment  in  Sutton  v.  Lord  Montfort,  4  Sim.  559,  564;  for  while  the  case  before  him 
was  one  of  obstructing  an  easement  of  light,  and  while  the  question  he  was  considering 
was  one  which  could  arise  only  in  cases  in  which  the  right  infringed  was  an  easement  or 
other  incorporeal  right,  yet  he  referred  to  the  case  of  the  owner  of  Whiteacre  committing 
a  nuisance  against  Blackacre,  by  making  soap  or  grinding  bones,  as  in  point. 


A    BRIEF   SURVEY  OE  EQUITY  JURISDICTION.        249 

one  way  only,  and  that  its  infringement  is  precisely  the  converse  of 
the  rigiit  itself,  namely,  a  monopoly  or  exclusive  right  granted  by 
the  State,  /.  e.,  a  r.egative  absolute  right;  for,  as  such  a  right  con- 
sists merely  in  the  power  to  prevent  any  one  else  from  doing  what 
the  grantee  of  the  monopoly  has  the  exclusive  right  to  do,  it  is  only 
by  doing  something  to  which  the  monopoly  extends  that  the  right 
of  such  grantee  can  be  infringed.  In  this  respect,  therefore,  a 
monopoly  is  strictly  analogous  to  a  negative  personal  obligation. 
By  incurring  a  negative  obligation,  the  obligor  deprives  himself  of 
the  right  to  do  something  as  between  himself  and  the  obligee;  by 
granting  a  monopoly  the  State  deprives  all  persons  within  its 
limits,  except  the  grantee  of  the  monopoly,  of  the  right  to  do  some- 
thing as  between  them  and  such  grantee.  For  example,  a  copy- 
right is  simply  a  monopoly  of  the  right  of  multiplying  copies  of  a 
printed  book;  and,  therefore,  it  is  no  infringement  of  an  author's 
copyright  in  a  published  drama  to  produce  such  drama  on  the  stage. 
It  follows,  therefore,  that  a  copyright  in  a  published  drama  is  by 
no  means  equal,  even  while  it  lasts,  to  an  author's  common  law 
right  in  an  unpublished  drama.  Of  course,  the  State  might  have 
revested  in  the  authors  of  published  books,  for  a  limited  period, 
the  right  which  it  declared  them  to  have  lost  by  publication,  and 
the  title  ^  of  the  original  copyright  act^  indicates  that  the  legisla- 
ture which  passed  it  supposed  that  that  was  what  it  was  doing;  but 
all  that  the  act  really  did  was  to  vest  in  authors  of  published  books 
the  exclusive  right  of  multiplying  copies  of  them ;  ^  and  a  conse- 
quence was  that,  for  more  than  a  century,*  the  publication  of  a 
drama  deprived  its  author  of  all  exclusive  right  of  producing  it  on 
the  stage.  Another  consequence  was,  that  it  required  two  statutes, 
and  the  creation  of  two  rights,  to  replace,  for  a  limited  period,  the 
one  common  law  right  which  the  author  of  a  drama  was  held  to 
have  lost  by  publishing  the  drama.  It  may  be  further  remarked 
that  the  two  statutory  rights  are  inferior  to  the  one  common  law 
right,  not  only  because  of  their  limited  duration,  but  also  because 
they  do  not  extend  beyond  the  limits  of  the  State  which  creates 
them,  while  the  common  law  right  is  good  everywhere. 

1  "  An  Act  for  the  encouragement  of  learning,  by  vesting  the  copies  of  printed  books 
in  the  authors  or  purchasers  of  such  copies,  during  the  times  therein  mentioned  " 

2  8  Anne,  c.  19  {1709). 

*  "  Shall  have  the  sole  right  and  liberty  of  printing  such  book  and  books  for  the  term 
of,"  etc.     S.  I. 

*  Namely,  in  England,  until  1S33,  when  3  &  4  Will.  IV.  c.  15,  was  passed;  in  the 
United  States,  until  the  passage  of  the  Act  of  1856,  c.  169.     11  Stats.  138. 


250        A   BRIEF  SURVEY  OF  EQUITY  JURIS  DICTION. 

There  are  some  affirmative  torts  which  are  clearly  infringements 
of  rights  of  property,  but  which  consist,  not  in  injuring  anything 
which  belongs  to  another,  but  in  wrongfully  depriving  another  of 
something  which  belongs  to  him,  or  in  wrongfully  intercepting 
something  which  would  otherwise  come  to  another,  and  yet  under 
such  circumstances  that  the  person  injured  cannot  be  restored  to 
what  he  has  thus  been  wrongfully  deprived  of,  and,  therefore,  he 
must  content  himself  with  a  compensation  in  money,  i.  e.,  damages. 
In  such  cases,  therefore,  while  the  tort  is  clearly  to  property,  yet  it 
is  not  a  tort  to  any  particular  thing,  nor  has  it  properly  any  rela- 
tion to  any  particular  thing.  It  is,  therefore,  a  tort  to  the  estate 
of  the- person  injured  in  the  aggregate,  —  to  the  ujiiversitas  of  his 
estate  (as  the  Romans  called  it),  consisting,  as  it  does,  in  making 
him  so  much  poorer.  '  Of  this  description  are  many  species  of 
fraud,  for  example,  the  so-called  infringement  of  a  trade-mark,  or 
of  good-will, — which  consists  in  wrongfully  and  fraudulently  de- 
priving another  person  of  customers  whose  patronage  he  would 
otherwise  have  received. 

In  all  such  cases,  it  is  very  important  that  it  be  clearly  under- 
stood that  the  tort  is  not  to  any  specific  thing;  for,  otherwise, 
one  will  be  in  danger  of  deceiving  himself  as  to  the  nature  of 
the  right  injured,  —  of  persuading  himself,  indeed,  that  the  in- 
jury is  to  a  right  which  in  truth  has  no  existence.  Thus,  in  cases 
of  infringement  of  trade-mark  or  good-will,  it  has  often  happened 
that,  as  it  was  assumed  that  some  specific  thing  must  be  injured, 
so  it  was  concluded  that  a  trade-mark  or  good-will  is  a  species  of 
incorporeal  property,  —  a  notion  which  clearly  has  no  solid  founda- 
tion. There  may,  indeed,  be  other  reasons  for  the  notion  than  the 
one  just  stated.  For  example,  it  has  been  found  convenient  to 
apply  to  trade-marks  the  nomenclature  which  had  become  familiar 
in  connection  with  patent  rights  and  copyrights,  and  the  practice 
of  doing  so  has  suggested  and  made  plausible  the  idea  that  the 
former  were  analogous  to  the  two  latter.  So,  also,  trade-marks  and 
good-will  have  often  been  spoken  of  and  treated  as  proper  subjects 
of  purchase  and  sale.  It  is,  however,  only  by  a  figure  of  speech 
that  either  of  these  can  be  said  to  be  purchased  or  sold,  and  what 
is  called  a  purchase  and  sale  of  a  trade-mark  or  good-will  is 
in  truth  only  a  contract,  by  which  (for  example)  the  so-called 
seller  agrees  to  retire  from  business,  and  to  introduce  the  so- 
called  purchaser  to  his  former  customers  and  to  the  public  as  his 
successor* 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        25  I 

What  has  thus  far  been  said  of  rit^dits  and  tlicir  infringement  has 
in  it  no  clement  of  equity.  The  rights  which  have  been  described 
may  be  defined  as  original  and  independent  rights,  and  equity  has 
no  voice  either  in  the  creation  of  such  rights  or  in  deciding  in 
whom  they  are  vested.  Equity  cannot,  therefore,  create  personal 
rights  which  are  unknown  to  the  law;  nor  can  it  say  that  a  thing, 
which  by  law  has  no  owner,  is  a  subject  of  ownership,  nor  that  a 
thing  belongs  to  A  which  by  law  belongs  to  B;  nor  can  it  create  an 
obligation  or  impose  a  duty  which  by  law  does  not  exist;  nor  can 
it  declare  that  a  right  arising  from  an  obligation  is  assignable,  if 
by  law  it  is  not  assignable.  To  say  that  equity  can  do  any  of 
these  things  would  be  to  say  that  equity  is  a  separate  and  inde- 
pendent system  of  law,  or  that  it  is  superior  to  law. 

If  there  is  no  element  of  equity  in  a  given  right,  neither  is  there 
any  in  the  infringement  of  that  right;  for  what  is  an  infringement 
of  a  right  depends  entirely  upon  the  extent  of  the  right.  If,  there- 
fore, equity  could  declare  that  a  right  has  been  infringed  when  by 
law  it  has  not,  it  would  thus  enlarge  the  right  of  one  man,  and 
curtail  that  of  another. 

When,  however,  it  is  said  that  equity  has  no  voice  in  a  given 
question,  it  must  not  be  inferred  that  a  judge  sitting  in  equity  has 
no  such  voice.  An  equity  judge  administers  the  same  system  of 
law  that  a  common  law  judge  does;  and  he  is  therefore  constantly 
called  upon  to  decide  legal  questions.  It,  accordingly,  sometimes 
happens  that  courts  of  equity  and  courts  of  common  law  declare 
the  law  differently;  and  a  consequence  of  this  may  be  that  courts 
of  equity  will  recognize  a  certain  right  which  courts  of  common 
law  refuse  to  recognize;  but  it  does  not  follow  that  the  right  thus 
recognized  is  properly  an  equitable  right.  So  courts  of  equity  may 
treat  an  act  as  an  infringement  of  a  legal  right,  which  courts  of 
common  law  treat  as  rightful;  but  it  does  not  follow  that  such  an 
act  is  properly  an  equitable  tort.  A  well-known  instance  of  such 
an  act  is  found  in  what  is  commonly  called  equitable  waste.  For 
example,  if  a  tenant  for  life,  without  impeachment  of  waste,  cut 
down  ornamental  trees,  or  pull  down  houses,  a  court  of  equity  says 
he  has  committed  waste,  while  a  court  of  common  law  says  he  has 
not.  Either  court  may  be  wrong,  and  one  of  them  mttst  be ;  for 
the  question  depends  entirely  upon  the  legal  effect  to  be  given  to 
the  words,  "  without  impeachment  of  waste,"  and  that  cannot 
depend  upon  the  kind  of  court  in  which  the  question  happens  to 
arise.     Yet  the  practical  consequence  of  this  diversity  of  views  is, 


252        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

that  there  is  a  remedy  in  equity  against  the  tenant  in  the  case 
supposed,  while  there  is  none  at  law;  and  this  gives  to  the  act  of 
the  tenant  the  semblance  of  being  an  equitable  tort.  In  truth, 
however,  the  act  is  a  legal  tort,  if  the  view  taken  by  courts  of 
equity  is  correct,  while  it  is  a  rightful  act,  if  the  view  taken  by 
courts  of  common  law  is  correct. 

As  legal  rights  have  in  them  no  element  of  equity,  so  equitable 
rights  have  in  them  no  element  of  law.  In  short,  legal  rights  and 
equitable  rights  are  entirely  separate  and  distinct  from  each  other, 
each  having  a  source  and  origin  of  its  own,  —  legal  rights  being 
the  creatures  of  the  law,  i.  e.,  of  the  State,  and  equitable  rights  be- 
ing the  creatures  of  equity.  What  then  is  the  nature  of  equita- 
ble rights,  and  how  can  equitable  rights  and  legal  rights  coexist 
in  the  same  State?  This  question  suggests  another,  namely,  what 
is  the  nature  of  equity,  and  how  can  law  and  equity  coexist  in  the 
same  State?  As  law  is  the  creature  of  the  State,  so  equity  was 
originally  the  creature  of  the  supreme  executive  of  the  State,  /.  e., 
of  the  king.  What  then  was  the  power  of  the  king  which  en- 
abled him  to  create  equity?  It  may  be  answered  that  he  had 
in  him  the  sole  judicial  authority,  as  well  as  the  sole  executive 
power,  but  none  of  the  legislative  power  (/.  e.,  he  could  not  alone 
exercise  any  portion  of  the  latter).  By  virtue  of  his  judicial 
power,  he  had  entire  control  over  procedure,  so  long  as  the  legisla- 
ture did  not  interfere;  and  this  it  was  that  enabled  him  to  create 
equity.  As  he  had  no  legislative  power,  he  could  not  impart  to 
his  decisions  in  equity  any  legal  effect  or  operation,  but  when  he 
had,  by  the  exercise  of  his  judicial  authority,  rendered  a  decision 
in  equity  in  favor  of  a  plaintiff,  he  could  enforce  it  by  exerting 
his  executive  power  against  the  person  of  the  defendant,  /.  e., 
he  could  compel  the  defendant  to  do,  or  to  refrain  from  doing, 
whatever  he  had  by  his  decision  directed  him  to  do  or  to  refrain 
from  doing. 

The  subject  must,  however,  be  examined  a  little  more  closely. 
The  cases  in  which  equity  assumes  jurisdiction  over  controversies 
between  litigants  may  be  divided  into  two  great  classes,  namely, 
those  in  which  a  plaintiff  seeks  relief  in  equity  respecting  some 
legal  claim  which  he  makes  against  the  defendant,  and  those  in 
which  he  makes  no  such  claim.  In  the  first  class  of  cases,  the 
ground  upon  which  equity  takes  jurisdiction  is  that  the  plaintiff 
either  can  obtain  no  relief  at  all  at  law,  or  none  which  is  adequate ; 
and,  therefore,  so  far  as  regards  this  class  of  cases,  equity  consists 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        253 

merely  in  a  different  mode  of  giving  relief  from  that  employed  by 
courts  of  common  law,  /,  r. ,  in  a  different  mode  of  protecting  and 
enforcing  legal  rights ;  and,  therefore,  the  exercise  of  this  branch 
of  the  jurisdiction  has  already  been  sufficiently  accounted  for. 

The  other  class  of  cases,  however,  is  not  so  easily  disposed  of. 
It  may  be  divided  into  those  in  which  the  plaintiff  sets  up  no  legal 
right  whatever,  and  those  in  which  the  only  legal  right  he  sets  up  is 
a  defence  to  some  legal  claim  which  the  defendant  makes  against 
him.  In  cases  belonging  to  the  first  subdivision,  equity  interferes 
upon  the  ground  that  the  substantive  law  (and  not  merely  the 
remedial  law)  is  inadequate  to  the  purposes  of  justice.  In  cases 
belonging  to  the  second  subdivision,  equity  interferes  upon  the 
ground  that  justice  requires  that  the  plaintiff  should  be  permitted 
to  take  the  initiative  in  the  litigation,  and  procure  a  decision  of  the 
controversy  in  a  suit  brought  by  himself,  instead  of  being  com- 
pelled to  wait  the  pleasure  of  the  defendant  in  suing  him  at  law, 
and  then  to  set  up  his  defence.  In  one  important  particular,  how- 
ever, cases  belonging  to  these  two  subdivisions  are  alike,  namely, 
in  the  necessity  which  they  impose  upon  equity  of  creating  a  new 
right  in  the  plaintiff's  favor;  for  no  action  or  suit  can  be  main- 
tained in  any  court  without  some  right  upon  which  to  found  it. 
Moreover,  such  right  must  consist  of  a  claim  to  be  enforced 
against  the  defendant,  and  not  merely  of  the  means  of  defeating 
a  claim  which  the  defendant  makes  against  the  plaintiff,  i.  e.,  of  a 
defence. 

How  then  is  the  difficulty  to  be  met?  In  early  times,  prob- 
ably, the  difficulty  itself  was  not  much  felt.  Perhaps,  indeed,  it  was 
not  felt  at  all,  it  not  being  perceived  that  the  king  could  properly 
issue  judicial  commands  only  in  support  of  some  right.  At  the 
present  day,  however,  the  question  whether  any  given  action  or 
suit  will  lie  must  be  answered  in  one  of  three  ways,  namely,  first, 
by  showing  some  right  in  the  plaintiff  on  which  the  suit  can  rest; 
secondly,  by  saying  that  it  will  not  lie ;  or,  thirdly,  by  saying  it 
is  an  anomaly;  and  the  cases  in  which  the  plaintiff  asserts  no  legal 
claim  against  the  defendant  are  too  numerous  to  be  disposed  of  in 
that  way. 

Can  equity  then  create  such  rights  as  it  finds  to  be  necessary 
for  the  purposes  of  justice?  As  equity  wields  only  physical  power, 
it  seems  to  be  impossible  that  it  should  actually  create  anything. 
It  seems,  moreover,  to  be  impossible  that  there  should  be  any 
other  actual  rights  than  such  as  are  created  by  the  State,  /.  e.,  legal 


254        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

rights.  So,  too,  if  equity  could  create  actual  rights,  the  existence 
of  rights  so  created  would  have  to  be  recognized  by  every  court  of 
justice  within  the  Stale;  and  yet  no  other  court  than  a  court  of 
equity  will  admit  the  existence  of  any  right  created  by  equity. 
It  seems,  therefore,  that  equitable  rights  exist  only  in  contempla- 
tion of  equity,  i.  e.,  that  they  are  a  fiction  invented  by  equity  for 
the  promotion  of  justice.  Still,  as  in  contemplation  of  equity  such 
rights  do  exist,  equity  must  reason  upon  them  and  deal  with  them 
as  if  they  had  an  actual  existence. 

Shutting  our  eyes  then  to  the  fact  that  equitable  rights  are  a 
fiction,  and  assuming  them  to  have  an  actual  existence,  what  is 
their  nature,  what  their  extent,  and  what  is  the  field  which  they  oc- 
cupy? I.  They  must  not  violate  the  law.  2.  They  must  follow 
the  analogy  of  one  or  more  classes  of  legal  rights.  3.  There  is  no 
exclusive  field  for  them  to  occupy;  for  the  entire  field  is  occu- 
pied by  legal  rights.  Legal  and  equitable  rights  must,  therefore, 
exist  side  by  side,  and  the  latter  cannot  interfere  with,  or  in  any 
manner  affect,  the  former.  4.  They  must  be  such  as  can  be 
enforced  by  the  exercise  of  physical  power  in  personam  ;  for,  as 
equity  has  no  other  means  of  enforcing  rights,  it  would  be  in  vain 
for  it  to  create  rights  which  could  not  be  so  enforced.  5.  Propo- 
sitions one  and  four  prove  that  no  equitable  rights  can  be  created, 
even  by  way  of  fiction,  in  analogy  to  either  class  of  absolute  rights, 
nor  in  analogy  to  real  obligations ;  and,  though  expressions  are 
often  met  with  which  seem  to  indicate  the  contrary,  yet  they  mu.st 
be  regarded  as  mere  figures  of  speech.  6.  All  equitable  rights 
must,  therefore,  be  in  the  nature  either  of  personal  obligations  or 
of  duties.  7.  Equitable  rights  clearly  constitute  but  one  class, 
and,  therefore,  they  must  all  be  classed  either  as  personal  obliga- 
tions or  as  duties.  8.  They  bear  some  analogy  to  duties  but  more 
to  personal  obligations;  and,  therefore,  they  must  be  classed  as 
equitable  personal  obligations.  They  are  analogous  to  duties  in 
this  respect,  namely,  that,  as  duties  will  be  imposed  whenever  the 
State  sees  fit  to  impose  them,  so  equitable  rights  will  be  created, 
subject  to  the  limitations  herein-before  and  herein-after  stated, 
whenever  equity  finds  it  necessary  to  create  them.  In  all  other 
respects,  however,  they  are  analogous  to  personal  obligations.  9. 
There  is  no  division  of  equitable  obligations  answering  to  the  divi- 
sion of  legal  obligations  into  those  which  are  ex  contractu  and 
those  which  are  ex  lege ;  for  a  contract  always  produces  a  legal 
obligation.     Therefore,  all  equitable  obligations  may  be  said  to  be 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        255 

ex  cequitate.  10.  An  equitable  obligation  cannot  impose  a  gen- 
eral personal  liability  upon  the  obligor,  as  that  would  be  in  viola- 
tion of  law.  Therefore,  while  a  covenant  by  a  purchaser  of  land 
with  his  vendor,  that  no  building  shall  ever  be  erected  on  the  land 
other  than  a  dwelling-house,  will  bind  in  equity  all  subsequent 
owners  of  the  land  until  it  comes  into  the  hands  of  a  purchaser  for 
value  and  without  notice  of  the  covenant,  yet  a  covenant  by  such 
purchaser  with  his  vendor,  that  a  dwelling-house  shall  be  erected 
on  the  land,  within  a  specified  time,  at  a  cost  of  $10,000,  will  bind 
no  one  in  equity  whom  it  will  not  bind  at  law.^  1 1.  An  equitable 
obligation,  therefore,  can  bind  the  obligor  only  in  respect  of  some 
right  vested  in  him;  and,  therefore,  every  right  created  by  an 
equitable  obligation  is  derived  from,  and  dependent  upon,  some 
other  right  vested  in  the  obligor.  Moreover,  every  original  equi- 
table right  is  derived  from,  and  dependent  upon,  a  legal x'x^t  vested 
in  the  obligor.  In  short,  every  equitable  right  is  derived,  either 
mediately  or  immediately,  from  a  legal  right;  and,  while  an  indefi- 
nite number  of  equitable  rights  may  be  derived  from  one  legal 
right,  yet  they  will  all  be  dependent  upon  that  one  legal  right. 

It  is  not,  however,  all  legal  rights  that  can  be  the  subjects  of 
equitable  obligations.  Only  those  can  be  so  which  are  alienable 
in  their  nature.  Of  absolute  rights,  therefore,  none  of  those 
which  are  personal  can  ever  be  the  subjects  of  equitable  obliga- 
tions, while  nearly  all  rights  which  consist  in  ownership  can  be  the 
subjects  of  such  obligations.  Relative  rights  can  generally  be  the 
subjects  of  equitable  obligations,  but  not  always.  For  example, 
some  rights  arising  from  real  obligations  are  inseparably  annexed 
to  the  ownership  of  certain  land,  and,  therefore,  are  not  alienable 
by  themselves.  So,  also,  some  rights  arising  from  personal  obliga- 
tions are  so  purely  personal  to  the  obligee  as  to  be  obviously 
.  inalienable.  It  is  only  necessary  to  mention,  as  an  extreme  case, 
the  right  arising  from  a  promise  to  marry. 

If  a  legal  right  is  capable  of  being  the  subject  of  an  equitable 
obligation,  the  power  of  equity  to  impose  an  obligation  upon  the 
owner  of  it  as  such  is  subject  to  one  limitation  only,  namely,  that 
which  is  imposed  by  law.  Under  what  circumstances,  then,  can 
an  equitable  obligation  be  imposed  upon  the  owner  of  a  legal  right 
as  such  without  violating  the  law?     Whenever  the  owner  of  the 

1  Tulk  V.  Moxhay,  2  Ph.  774  ;  Haywood  v.  Brunswick  Building  Soc,  8  Q.  B.  D.  403  ; 
L.  &  S.  W.  R.  Co.  V.  Gomm,  20  Ch.  D.  562,  582,  586,  587  ;  Austerberry  v.  Oldham, 
29  Ch.  D.  750. 


256        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

right  has  received  it  by  way  of  gift,  but  not  for  his  own  benefit,  or 
has  obtained  it  by  fraud  or  other  wrong,  or  has  received  it  by  way 
of  gift,  or  without  payment  of  value,  from  one  who  was  himself 
bound  by  an  equitable  obligation  respecting  it,  or  has  received  it 
for  value  from  a  person  so  bound,  but  with  notice  that  the  latter 
was  so  bound.  So,  also,  if  the  owner  of  a  legal  right  incur  a  legal 
obligation  respecting  it,  equity  can,  subject  to  the  qualification 
stated  in  proposition  ten,  enforce  that  obligation  against  all  subse- 
quent owners  of  the  right,  until  the  latter  reaches  the  hands  of  a 
purchaser  for  value  and  without  notice.  So,  also,  if  the  owner  of 
a  right  has  incurred  a  legal  obligation  to  transfer  it  to  another, 
and  everything  has  been  done,  and  all  things  have  happened, 
necessary  to  transfer  the  right,  if  it  were  equitable,  equity  will  treat 
the  right  as  having  passed  in  equity,  though  not  at  law,  and,  there- 
fore, will  impose  upon  its  owner  an  obligation  to  hold  it  for  the 
benefit  of  the  legal  obligee. 

By  an  unfortunate  anomaly  it  is  also  now  held  that  the  owner  of 
a  legal  right  may,  by  a  mere  declaration  in  writing  to  that  effect, 
incur  an  equitable  obligation  respecting  that  right  in  favor  of  a 
person  between  whom  and  himself  there  has  been  no  previous  rela- 
tion, and  from  whom  he  receives  no  consideration.^  This  is  as 
much  in  violation  of  law  as  the  case  mentioned  in  proposition  ten. 
Moreover,  it  is  in  effect  enforcing  an  agreement  which  has  no  con- 
sideration to  support  it. 

If  A  convey  land  to  B,  and  the  conveyance  be  expressed  to  be  in 
consideration  of  money  paid  by  B  to  A,  but  in  fact  the  money  was 
paid  as  a  loan,  and  not  as  the  price  of  the  land,  the  inference  will 
be  irresistible  that  the  conveyance  was  made  merely  to  secure  the 
repayment  of  the  money  lent;  and,  therefore,  the  moment  the  con- 
veyance is  made,  B  will  incur  an  equitable  obligation  to  hold  the 
land  for  A's  benefit,  subject  to  his  own  rights  as  A's  creditor,  /.  e., 
there  will  be  a  resulting  trust  in  favor  of  the  debtor. 

If  land  be  conveyed  by  a  debtor  to  his  creditor  upon  a  condition 
subsequent,  namely,  that  the  title  conveyed  shall  revest  in  the 
debtor  on  his  paying  the  debt  on  a  day  named,  or  upon  an  agree- 
ment by  the  debtor  to  reconvey  the  land  on  payment  of  the  debt 
on  a  day  named,  and  the  day  be  permitted  to  pass  without  pay- 
ment, equity  will,  the  moment  that  the  debtor's  legal  right  is  thus 
lost,  impose  an  obligation  upon  the  creditor  to  reconvey  the  land 

1  Lewin  on  Trusts  (lOth  ed.)  68. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.        257 

upon  being  paid  "principal,  interest,  and  costs";  and  this  obli- 
gation will  continue  in  force  till  equity  itself  puts  an  end  to  it. 
The  principle  upon  which  equity  does  this  is  that  the  debtor  has 
lost  his  legal  right  as  a  penalty  for  not  paying  the  debt  on  the  day 
named,  that  the  debt  still  remains  unpaid,  and,  therefore,  if  equity 
does  not  interfere,  the  debtor,  having  lost  his  land,  will  also  be 
compelled  to  pay  the  debt,  if  he  have  the  means  of  doing  so,  —  in 
which  event  he  will  receive  nothing  for  his  land.  It  may  be  ob- 
jected that  equity  here  violates  the  legal  rights  of  the  creditor  by 
converting  a  penalty,  agreed  upon  between  the  parties,  into  a  mere 
security  for  the  payment  of  a  debt;  but  the  answer  is  that  the 
objection  comes  too  late,  for  equity  has  in  this  manner  relieved 
against  all  penalties  from  the  earliest  times,  and  its  action  in  that 
respect  has  been  acquiesced  in  by  the  legislature.  For  example, 
by  the  common  law  the  obligor  in  a  bond,  who  failed  to  pay  on  the 
day  named  in  the  bond,  became  in  consequence  liable  to  pay  twice 
the  amount  of  the  original  debt,  but  equity  would  always  restrain 
an  action  to  recover  the  penalty  on  payment  of  "  principal,  interest, 
and  costs  "  ;  and  the  interference  of  equity  in  this  way  was  not  only 
acquiesced  in,  but  its  view  was  adopted  by  the  legislature,  and 
became  statute  law,  more  than  two  hundred  years  ago.^ 

If  payment  of  a  debt  be  secured  by  a  pledge  of  the  debtor's 
property,  and  also  by  the  obligation  of  a  personal  surety,  and  the 
surety  pay  the  debt,  equity  will  compel  the  creditor  to  deliver  the 
pledge  to  him,  and  not  to  the  debtor,  though  the  latter  has  a  clear 
legal  right  to  receive  it,  the  debt  being  paid  and  extinguished  ;  i.  e., 
equity  destroys  the  legal  right  of  the  debtor,  and  converts  the 
creditor  into  a  trustee  for  the  surety.  This  is  done  upon  the 
theory  that  the  debt  is  not  paid  by  the  surety,  but  is  purchased  by 
him,  and  that  he  is,  therefore,  entitled  to  the  pledge  as  an  incident 
of  the  debt.  This,  however,  is  only  a  fiction,  —  a  fiction,  moreover, 
which  is  contrary  to  law;  for  the  payment  by  the  surety  extin- 
guishes the  debt.  Equity  does  this  under  the  name  of  subroga- 
tion, and  perhaps  her  best  justification  is  that  she  borrowed  both 
the  name  and  the  thing  from  the  civil  law.  Equity  has,  moreover, 
followed  the  civil  law  in  carrying  the  doctrine  of  subrogation  still 
further;  for  it  permits  a  surety  who  has  paid  the  creditor,  and  thus 
extinguished  the  debt,  to  recover  a  full  indemnity  frcyn  the  debtor, 
and  that  too  on  the  theory  that  the  debt  still  remains  due  from 

1  Namely,  by  8  &  9  Will.  III.  c.  11,  s.  8. 
17 


258         A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  latter,  and  that   the    surety    is    enforcing    the    rights    of   the 
creditor. 

In  all  the  foregoing  cases  the  obligation  imposed  by  equity  upon 
the  owner  of  a  legal  right  is  affirmative,  i.  e.,  it  is  an  obligation  to 
hold  the  legal  right    for  the  benefit  of  the  equitable  obligee,  in 
whole  or  in  part.     There  are  cases,  however,  in  which  the   object 
of  equity  is  not  to  compel  the  owner  of  a  legal  right  to  hold  the 
same  for  the  benefit  of  another,  but  to  restrain  him  from  exercis- 
ing it  for  his  own  benefit;    and,  whenever    that  is  the  case,  the 
obligation  imposed  will  of  course  be  negative.     Thus,   if  a  debtor 
fraudulently  procure  from  his  creditor  a  release  of  the  debt,  or  pro- 
cure such  release  for  a  consideration  which  he  afterwards  refuses 
or  fails  to  pay  or  perform,  equity  will  impose  upon  him  an  obliga- 
tion not  to  use  the  release  as  a  defence  to  an  action  or  suit  by  the 
creditor  to  recover  the  debt.     So  equity  will  impose  upon  a  defend- 
ant to  an  action  or  suit  an  obligation  not  to  use  a  defence  which 
will  prevent  a  trial  of  the  case  upon  its  merits,  or  by  which  the 
course  of  justice  will  otherwise  be  obstructed.     So,  if  a  legal  claim 
be  of  such   a  nature  that  it  may  be  the  subject  of  an   indefinite 
number  of  actions,  and  if  it  has  already  been  litigated  sufficiently 
to  satisfy  the  purposes  of  justice,  equity  will   impose   upon    the 
unsuccessful  party  an  obligation  not  to   prosecute  the  claim   fur- 
ther, or  not  to  resist  it  further,  as  the  case  may  be.^ 

When  an  equitable  right  has  once  been  created,  it  may  in  its 
turn  become  the  subject  of  a  new  equitable  right,  i.  e.,  its  owner 
may  incur  an  equitable  obligation  in  respect  to  it,  just  as  the  owner 
of  a  legal  right  may  incur  an  equitable  obligation  in  respect  to 
that;  and  this  process  may  go  on  indefinitely,  each  new  equitable 
right  becoming  in  its  turn  the  subject  of  still  another  equitable 
right,  and  all  the  equitable  rights  being  derived  from  the  same 
legal  right,  the  first  immediately,  the  others  mediately. 

If  equitable  rights  are  to  be  classed  as  obligations  rather  than 
as  duties,  it  will  follow  that  infringements  of  such  rights  are  to  be 
regarded  as  breaches  of  obligation.  Perhaps,  however,  it  is  not 
very  material  whether  they  be  regarded  as  breaches  of  obligation 
or  as  equitable  torts;  for,  whether  they  be  the  one  or  the  other,  it 
seems  that  the  relief  which  equity  will  give  will  be  the  same.     For 


1  The  rights  mentioned  in  the  text,  namely,  the  right  to  bring  an  action,  and  the  right 
to  defend  one's  self  against  an  action,  seem  to  be  personal  rights.  If  they  are  not.  they 
relate  to  procedure,  and  hence  do  not  come  within  the  scope  of  this  article.  See  Hol- 
land, Jurisprudence,  Part  2,  c.  15. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        259 

equity  never  gives  damages  for  an  infringement  of  an  equitable 
right,  but  makes  the  wrong-doer  a  debtor  to  the  person  wronged 
instead,  and  proceeds  upon  the  theory  of  compelling  the  former  to 
restore  to  the  latter  what  he  has  lost,  or  to  place  him  in  the  situa- 
tion in  which  he  would  have  been  if  the  wrong  had  not  been 
committed. 


ARTICLE   XV 


Equitable  Conversion. 

THE  word  "  conversion  "  {conversid)  is  derived  immediately  from 
the  Latin  verb  convertere,  which  is  in  turn  compounded  of 
the  prefix  con-  and  vertei'e.  Vertere  means  literally  to  turn  or  turn 
round,  and,  like  our  verb  "  turn,"  it  is  both  transitive  and  intran- 
sitive. As  a  transitive  verb,  however,  it  often  means  also  to  change 
the  nature  or  form  of  a  thing,  and  it  is  used  in  this  sense  in  a  great 
variety  of  connections;  and,  when  so  used,  it  is  synonymous  with 
mutare.  So,  too,  our  transitive  verbs  "turn"  and  "change"  are 
often  used  synonymously. 

The  compound  verb  co7wertere,  especially  when  used  transitively, 
has  practically  the  same  meaning  as  the  simple  verb,  the  prefix 
having  little,  if  any,  other  effect  than  that  of  adding  emphasis  to 
the  simple  verb. 

The  simple  verb  vertere,  as  well  as  most  of  its  derivatives,^  has 
been  wholly  rejected  by  us,  but  its  numerous  compounds,  in  their 
transitive  signification,  and  their  derivatives  have  not  only  been 
generally  adopted,  but  are  in  constant  use,  and  full  of  life  and  vigor ; 
and  this  is  true  of  convertere  and  conversio.  The  latter  is  a  verbal 
noun  or  noun  of  action,  i.  e.,  it  is  the  name  given  to  the  act  or 
action  expressed  by  the  verb  convertere.  Thus,  when  the  verb 
means  to  turn  or  turn  round,  the  noun  means  the  act  or  action  of 
turning  or  turning  round.     For  example,  in  logic,  a  proposition  is 

1  i8  Harv.  L.  Rev.  i. 

*  Verse,  versatile,  versatility,  and  version  are  exceptions. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        26 1 

said  to  be  converted  when  its  terms  are  transposed,  so  that  its  sub- 
ject becomes  its  predicate,  and  its  predicate  becomes  its  subject ; 
and  the  act  of  thus  transposing  the  terms  of  a  given  proposition  is 
called  the  conversion  of  that  proposition.  Hence  also  the  con- 
verse of  a  given  proposition  is  the  same  proposition  converted,  i.  e., 
the  same  proposition  with  its  terms  transposed.  So,  too,  when- 
ever the  verb  means  to  change  the  form  or  nature  of  a  thing,  the 
act  of  making  the  change  is  called  a  conversion.  Such  a  conver- 
sion may  be  made  in  two  ways,  one  of  which  may  be  termed  direct, 
the  other  indirect.  It  may  be  made  directly,  either  by  the  opera- 
tion of  natural  laws,  as  when  water  is  converted  into  ice  by  freezing 
weather,  or  by  artificial  means,  as  when  cotton,  flax,  or  wool  is 
converted  into  cloth  by  the  processes  of  spinning  and  weaving,  and 
when  iron  is  converted  into  steel  by  any  of  the  processes  employed 
for  that  purpose.  So  also  land  may  be  converted  directly  into  a 
chattel  by  the  physical  act  of  severing  a  portion  of  the  earth  from 
the  general  mass,  as  where  ore  is  dug  from  a  mine.  A  conversion 
may  be  made  indirectly  by  exchanging  one  thing  for  another,  as 
when  land  is  converted  into  money  by  selling  the  land,  and  thus 
receiving  money  in  exchange  for  it,  or  (what  is  still  more  indirect) 
when  land  is  converted  into  railway  shares  by  selling  the  land  for 
money,  and  then  investing  the  money  in  railway  shares. 

Of  these  two  kinds  of  conversion,  it  is  chiefly  of  the  indirect  that 
the  law  takes  cognizance. 

It  is  obvious  that  every  exchange  of  one  thing  for  another  is  a 
bilateral  or  two-sided  transaction,  as  every  exchange  of  money  for 
land  (for  example)  is  also  an  exchange  of  land  for  money.  More- 
over, such  an  exchange  commonly  has  its  origin  in  a  bilateral  or 
mutual  contract,  between  the  two  parties  to  the  exchange,  to  make 
such  exchange. 

Sometimes,  however,  the  contract  is  only  unilateral,  i.  e.,  one  of 
the  parties  only  binds  himself  to  make  the  exchange,  the  other 
having  an  option  to  make  it  or  not,  until  it  is  actually  made.^  An 
exchange  may  also  be  made  without  any  previous  contract  of  any 
kind,  /.  e.,  the  parties  may  arrange  together  the  terms  on  which 
they  will  make  the  exchange,  and  then  make  it  without  either  one's 
binding  himself  to  make  it.  It  is  in  this  way  that  a  tradesman 
commonly  sells  goods  by  retail  over  the  counter.  So  when  the 
owner  of  property  creates  a  right  in  another  person  to  have  prop- 

1  See  infra,  p.  269. 


262        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

erty  sold  to  satisfy  a  lien  or  charge  thereon,  but  the  sale  can  be 
made  only  under  a  decree  of  a  court  of  equity,  it  is  necessarily 
made  without  any  previous  contract.  To  be  sure,  there  are  com- 
monly all  the  forms  of  a  sale  by  auction,  but  these  forms  do  not 
create  a  contract.  What  the  buyer  relies  upon  is  the  good  faith 
of  the  court,  and  the  court  relies  upon  its  power  to  compel  the 
buyer  to  perform  his  promise,  although  the  latter  is  not  legally 
binding. 

For  the  present  purpose,  however,  it  may  be  assumed  that  every 
exchange  is  preceded  by  a  bilateral  contract  to  make  the  exchange. 
In  order,  however,  that  such  a  contract  may  result  in  an  actual 
exchange,  it  is  plain  that  one  of  the  parties  to  the  contract  must, 
at  the  time  of  making  the  exchange,  be  the  owner  of  one  of  the 
things  to  be  exchanged,  and  the  other  must  be  the  owner  of  the 
other,  or,  if  either  of  them  be  not  such  owner,  he  must  be  fully 
authorized  by  the  owner  to  make  the  exchange.  The  owner  of  a 
thing  may  authorize  another  person  to  exchange  it  for  something 
else,  either  by  conferring  upon  him  a  power  to  make  the  exchange, 
or  by  vesting  in  him  the  legal  title  to  the  thing,  with  authority  to 
make  the  exchange,  and,  in  either  case,  he  may  confer  merely  an 
authority  to  make  the  exchange,  or  he  may  direct  it  to  be  made.  It 
is  in  one  of  these  two  modes  that  an  authority  or  direction  is  always 
given  by  a  will  to  sell  or  purchase  land.  A  mere  authority  to  sell 
or  purchase  land,  whether  given  by  will  or  otherwise,  has  little  to  do 
with  equitable  conversion,  while  a  direction  by  will  to  do  either  gives 
rise  to  some  of  the  most  important  questions  which  the  subject  of 
equitable  conversion  involves.  As,  therefore,  a  direction  given  by 
will  to  sell  or  purchase  land  is  always  atteoded  with  two  peculiari- 
ties, it  is  important  that  these  peculiarities  be  carefully  attended 
to.  In  respect  to  these  peculiarities,  moreover,  there  is  no  differ- 
ence between  a  direction  to  sell  or  buy  land  and  a  mere  authority 
to  do  so. 

The  first  of  these  peculiarities  is  that  such  a  direction  does  not 
take  effect  for  any  purpose  whatever  until  the  testator's  death ;  ^ 
the  second  is  that,  at  the  mornent  of  the  testator's  death,  all  his 
property  devolves  upon  -some  pne  else,  either  by  the  effect  of  his 
will,  or  by  operation  of  law,  and  consequently  the  land  which  a 
testator  has  directed  to  be  sold  will,  at  the  moment  of  his  death, 
descend  to  his  heir,  unless  he  has  devised  it  to  some  one  else ;   and 


1  Sheddon  v.  Goodrich,  i8  Ves.  481 ;  Hooper  v.  Goodwin,  18  Ves.  156. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        263 

the  money  with  which  a  testator  has  directed  land  to  be  purchased 
will,  at  the  moment  of  his  death,  devolve  upon  his  executor  for  the 
benefit  of  his  next  of  kin,  unless  he  has  bequeathed  it  to  some  one 
who  is  not  his  next  of  kin,  and,  in  the  latter  case,  it  will  devolve 
upon  the  executor  for  the  benefit  of  the  legatee.  As,  therefore, 
the  sale  or  purchase  of  land  directed  by  a  testator  cannot  take 
place  until  sometime  after  his  death,  it  cannot  take  place  until  the 
land  to  be  sold,  or  the  money  with  which  land  is  to  be  purchased, 
has  completely  changed  ownership  in  the  manner  just  stated. 
When,  therefore,  a  testator  directs  a  sale  or  purchase  of  land  after 
his  death,  he  directs  a  sale  of  land  which  will  not  then  be  his,  or  a 
purchase  of  land  with  money  which  will  not  then  be  his,  and  hence 
the  question  at  once  arises  whether  the  direction  is  valid.  Before 
this  question  can  be  answered  intelligently  the  effect  of  such  sale 
or  purchase,  if  actually  made,  must  be  ascertained. 

When  land  is  exchanged  for  money  or  money  for  land,  the  first 
effect  is  that  he  who  before  owned  the  land  becomes  owner  of 
the  money  instead,  and  that  he  who  before  owned  the  money  be- 
comes owner  of  the  land  instead,  except  so  far  as  the  money  for 
which  the  land  is  exchanged,  or  the  land  for  which  the  money 
is  exchanged,  is  otherwise  effectively  disposed  of,  and  except  so 
far  as  the  money  for  which  land  is  exchanged  goes  to  satisfy  a 
charge  or  charges  on  the  land.  Whenever,  therefore,  any  question 
arises  as  to  who  is  entitled  to  the  proceeds  of  a  sale  of  land,  for 
example,  the  answer  generally  depends  upon  the  answer  to  three 
preliminary  questions,  namely,  ist,  who  owned  the  land  when  the 
sale  was  made;  2dly,  how  much,  if  any,  of  such  proceeds  goes  to 
satisfy  a  charge  or  charges  on  the  land;  3dly,  how  much,  if  any, 
of  such  proceeds  is  effectively  disposed  of  by  the  will. 

The  second  effect  of  an  exchange  of  land  for  money,  or  of 
money  for  land,  is  that  he  who  before  was  the  owner  of  real  estate 
becomes  the  owner  of  personal  estate  instead^  and  that  he  who 
before  owned  personal  estate  becomes  the  owner  of  real  estate 
instead.  If,  therefore,  he  who  owned  the  land  before  the  ex- 
change was  made,  die  the  next  day  after  the  exchange,  the  money 
which  he  has  received  in  exchange  will  go  to  his  personal  repre- 
sentative, whereas,  if  he  had  died  the  day  before  the  exchange,  the 
land  would  have  gone  to  his  heir.  So,  if  he  who  before  owned  the 
money  die  the  day  after  the  exchange  is  made,  the    land  which 

1  See  Walter  v.  Maunde,  19  Ves.  424. 


264        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION^. 

he  has  received  in  exchange  will  descend  to  his  heir,  whereas  if 
he  had  died  the  day  before  the  exchange  was  made,  the  money 
would  have  devolved  upon  his  personal  representative.  It  should 
be  added,  however,  that  this  second  effect  of  an  exchange,  though 
it  is  always  and  necessarily  produced  at  law,  is  not  always  produced 
in  equity,  for,  if  a  court  of  equity  be  of  opinion  that  either  party 
to  the  exchange  ought  not  to  have  made  the  exchange,  or  that 
justice  requires  that  the  exchange  should  not  produce  this  second 
effect  as  to  the  money  or  the  land  given  in  exchange,  such  court 
may,  and  sometimes  will,  reconvert  such  money  into  land,  or  such 
land  into  money,  in  the  manner  to  be  hereafter  stated,  i.  e.,  treat 
the  money,  for  the  purposes  of  devolution,  as  if  it  were  land,  or 
the  land  as  if  it  were  money. 

The  effects  produced  by  an  actual  exchange  of  land  for  money, 
as  stated  in  the  last  two  paragraphs,  are  illustrated  by  the  follow- 
ing cases. 

Thus,  in  Flanagan  v.  Flanagan,^  where  a  testator  devised  her 
land  to  her  father  and  brother,  subject  to  a  charge  for  payment 
of  her  debts,  and  after  the  testator's  death  the  father  died,  and 
then  some  of  the  land  was  sold  under  a  decree,  but  it  turned 
out  that  none  of  the  proceeds  of  the  sale  were  needed  for  the 
payment  of  debts,  one  half  of  such  proceeds  clearly  belonged 
to  the  father's  heir,  though  the  same  was  held  to  belong  to  his 
next  of  kin.  On  the  father's  death  his  one  half  of  the  land  de- 
scended to  his  heir,  and  it  continued  to  belong  to  him  till  the  sale 
was  made.  If,  however,  the  sale  had  been  made  during  the  father's 
life,  his  one  half  of  the  land  would  thereby  have  been  actually 
converted  into  money,  and  such  money  would,  upon  his  death, 
have  devolved  upon  his  executor  for  the  benefit  of  his  next  of 
kin.  A  question  was  sought  to  be  raised  whether,  as  the  sale  turned 
out  to  be  unnecessary,  the  money  ought  not  to  be  reconverted 
by  equity  into  land.  No  such  question,  however,  was  before  the 
court,  for,  assuming  that  it  would  have  to  be  answered  in  the 
affirmative,  the  only  effect  would  be  that  the  father's  heir  would 
take  it  as  land,  and  whether  he  would  take  it  as  money  or  land 
would  not  be  material  until  it  devolved  from  him  upon  some  one 
else. 

So  in  Ackroyd  v.  Smithson,^  where  a  testator  devised  land 
to  trustees   in   trust  to  sell   the   same,   and   divide    the    proceeds 

1  Cited  I  Bro.  C.  C.  498.  2  i  Bro.  C.  C.  503. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        26$ 

among  fifteen  legatees,  two  of  whom  died  during  the  testator's 
life,  and  after  the  testator's  death  the  land  was  sold,  the  shares  of 
the  two  deceased  legatees  in  the  proceeds  of  the  sale  clearly- 
belonged  in  equity  to  the  testator's  heir,  the  land  being  his  when 
it  was  sold,  and  the  shares  of  the  two  deceased  legatees  being 
undisposed  of;  and  the  court  so  held,  though  not  till  after  the 
celebrated  argument  of  Mr.  Scott  (afterwards  Lord  Eldon)  had 
induced  Lord  Thurlow  to  change  his  mind,  he  having  announced, 
before  Mr.  Scott  began  his  argument,  that  his  opinion  was  in 
favor  of  the  testator's  next  of  kin,  who  claimed  the  shares  of  the 
two  deceased  legatees  against  the  heir,  and  who  filed  the  bill  to 
enforce  their  claim. 

Ackroyd  v.  Smithson  was  soon  followed  by  Robinson  t/.  Taylor,^ 
where  a  testator  devised  his  land  to  his  executors  in  trust  to  sell 
the  same,  and  make  certain  payments  out  of  the  proceeds,  and  pay 
the  interest  of  the  residue  to  a  person  named  for  life.  The  land 
was  sold  accordingly,  and,  on  the  death  of  the  legatee  for  life.  Lord 
Thurlow  held  that  the  principal  of  such  residue  went  to  the  testa- 
tor's heir,  though  the  same  was  claimed  by  his  next  of  kin. 

So  in  Dixon  v.  Dawson,^  where  a  testator  devised  all  his  land  to 
trustees  to  be  sold  to  satisfy  certain  charges,  and  the  same  was 
sold  accordingly,  and  produced  a  surplus,  and  the  sale  was  held  to 
have  been  properly  made,  it  was  also  properly  held  that  such  sur- 
plus belonged  to  the  heir,  but  that,  the  sale  having  been  made  in 
his  lifetime,  the  surplus  was  money  in  his  hands,  and  so  devolved 
on  his  personal  representative. 

In  Wilson  v.  Coles,^  where  land  was  directed  by  will  to  be  sold, 
and  the  only  valid  gift  of  the  proceeds  of  the  sale  was  to  the 
testator's  wife  for  her  life,  and  the  testator  died  in  1841,  leaving 
two  co-heirs,  one  of  whom  died  in  1843,  and  the  land  was  sold  in 
1857,  and  the  wife  died  in  1859,  it  seems  clear  that  the  heir  of  the 
deceased  co-heir  was  entitled  to  the  latter's  one  half  of  said  pro- 
ceeds, though  the  court  gave  the  same  to  her  personal  representa- 
tive. On  the  testator's  death  the  legal  title  to  the  land  passed 
to  the  devisees  in  trust,  but  the  equitable  title  descended  to  the 
two  co-heirs,  on  the  death  of  one  of  whom  her  one  half  of  the  land 
descended  to  her  heir,  in  whom  it  remained  until  the  sale,  when 
the    interests   of  all    persons    concerned   were    converted    for   all 


1  2  Bro.  C.  C.  589.  *  2  Sim.  &  S.  327. 

8  28  Beav.  216. 


266        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

purposes  into  money.  Until  the  death  of  the  wife,  the  interests 
of  the  two  co-heirs  and  of  the  heir  of  the  deceased  co-heir  were  of 
course  reversionary. 

If  a  mortgaged  estate  be  sold  by  the  mortgagee,  under  a  power 
of  sale  contained  in  the  mortgage  deed,  any  surplus  which  is  pro- 
duced by  the  sale  will  belong  to  the  mortgagor.  Why?  Because 
he  was  in  equity  the  owner  of  the  estate  when  the  sale  was  made, 
the  mortgage  being  a  mere  charge.  If.  however,  the  mortgagor 
re  the  sale,  still  being  the  owner  of  the  estate,  and  then 
he  made,  the  surplus  will  belong  to  the  heir  or  devisee,^ 
though,  if  he  had  died  aftej  the  sale,  it  would  belong  to  his 
executor.^ 

The  real  estate  of  a  bankrupt,  though  its  legal  title  passes  to 
his  assignees,  still  belongs  in  equity  to  the  bankrupt,  subject  only 
to  the  lien  of  his  creditors,  so  long  as  it  remains  unsold.  If,  there- 
fore, it  be  sold  by  the  assignees  during  the  bankrupt's  life,  any 
surplus  will  belong  to  the  latter,  and,  on  his  death,  will  go  to  his 
personal  representative,  but,  if  it  be  sold  after  the  bankrupt's  death, 
any  surplus  will  belong  to  his  heir.^ 

If  a  settled  estate  be  subject  to  a  mortgage  which  antedates 
the  settlement,  and  the  estate  be  sold  to  satisfy  the  mortgage,  and 
produce  a  surplus,  such  surplus  will  belong  to  the  persons  to  whom 
the  equity  of  redemption  belonged  when  the  sale  was  made,  /.  e., 
it  will  follow  the  limitations  of  the  settlement.^ 

If  settled  land  be  taken  by  the  state  for  public  uses  the  effect 
will  be  the  same  as  if  the  land  had  been  sold  to  satisfy  a  prior 
charge,  as  the  title  acquired  by  the  state  will  override  all  the  limi- 
tations in  the  settlement,  and  therefore  the  money  which  the  state 
pays  for  the  land  will  be  subject  to  all  those  limitations,  just  as 
the  land  was  before  the  state  took  it.^ 

If  a  settled  estate  be  sold  under  a  power,  whether  the  power 
be  created  by  the  settlement,  or  afterwards  by  private  act,  the  sale 
being  made  with  a  view  to  reinvesting  the  proceeds  in  other  land, 
such  proceeds  will,  immediately  upon  the  sale's  being  made,  follow 
all  the  limitations    of  the    settlement,  and  that  too    whether    the 

1  Wright  V.  Rose,  2  Sim.  &  S.  323 ;  Bourne  v.  Bourne,  2  Hare  35  ;  Gardner's  Trusts, 
In  re,  i  Equity  Reports,  57. 

2  Mary  Smith's  Mortgage  Account,  /«  re,  9  W.  R.  799. 

3  Banks  v.  Scott,  5  Madd.  493. 

*  See  Jones  v.  Davies,  8  Ch.  D.  205. 

*  Horner's  Estate,  In  re,  5  De  G.  &  Sm.  483. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        267 

instrument  creating  the  power  directs  the  proceeds  of  a  sale  to 
be  reinvested  in  land  or  not.^ 

In  each  of  the  three  preceding  cases,  if  the  settlement  does  not 
exhaust  the  entire  fee-simple  in  the  land,  the  ultimate  reversionary 
interest  in  the  money  which  has  been  substituted  for  the  land  will 
vest  in  the  person  or  persons  in  whom  the  ultimate  reversion  of 
the  fee-simple  in  the  land  was  vested  when  the  latter  was  converted 
into  money. 

In  Jermy  v.  Preston  ^  by  a  marriage  settlement,  dated  Oct.  4 
and  5,  1 75  I,  land  was  limited  to  the  intended  husband  for  life,  re- 
mainder to  trustees  for  five  hundred  years,  remainder,  in  the  events 
which  happened,  to  the  husband  in  fee.  The  trust  of  the  term  was 
to  raise  ;^5000  for  the  intended  wife  on  the  death  of  the  husband. 
The  husband  died  in  January,  1752,  having  devised  the  land  to  the 
wife  for  life,  remainders  over.  Afterwards  the  trustees  of  the  term 
sold  a  part  of  the  land  for  the  said  term  for  the  purpose  of  raising 
the  ;^5000,  and  the  sale  produced  a  surplus,  which  was  paid  into 
court,  and  had  there  remained  ever  since.  The  wife  received  the 
income  of  this  surplus  until  her  death,  November  18,  1791,  since 
which  time,  a  period  of  more  than  fifty  years,  the  income  had 
accumulated,  and  the  question  was  to  whom  did  the  principal  and 
accumulated  income  now  belong,  on  the  supposition,  ist,  that  it 
was  money  in  equity  as  well  as  in  fact,  2dly,  that  it  was  land  in 
equity?  On  each  supposition  the  total  product  of  the  sale,  from 
the  moment  of  its  receipt  by  the  trustees,  followed  the  limitations 
in  the  husband's  will,  subject  to  the  payment  of  the  ^^"5000.  The 
five  hundred  year  term  was,  in  the  events  which  happened,  and 
subject  to  the  payment  of  the  ;^5000,  held  in  trust  for  the  husband, 
he  being  the  owner  of  the  reversion  expectant  on  the  termination 
of  that  term.  The  only  effect  of  the  term  in  equity  was,  therefore, 
to  create  a  charge  on  the  land  of  ^5000,  and  though  in  strictness 
of  law  this  charge  extended  only  to  the  term,  yet  for  all  practical 
purposes  it  extended  to  the  entire  fee-simple.  Indeed,  a  charge 
so  created  differs  practically  from  an  ordinary  charge  on  land, 
created  by  the  will  of  its  owner,  only  in  this,  namely,  that  the 
former  will  bind  the  land  even  in  the  hands  of  a  purchaser  for 
value  without  notice,  while  the  latter  will  bind  it  only  so  long  as  it 
remains  in  the  hands  of  the  person  who  created  the  charge,  or  of 
the  person  or  persons  claiming  under  him,  who  received  the  land 
without  paying  value  for  it  or  with  notice  of  the  charge.     By  the 

1  Duke  of  Cleveland's  Settled  Estates,  In  re,  [1893]  3  Ch.  244.  2  i^  gjm.  356. 


268        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

husband's  will,  therefore,  not  only  the  legal  reversion,  expectant 
on  the  termination  of  the  term,  but  also  the  equitable  ownership 
of  the  term  itself  passed  to  his  devisees,  subject  to  the  charge. 
Consequently,  when  the  sale  was  made,  the  money  produced  by 
it  belonged  to  the  same  devisees,  subject  to  the  same  charge,  and, 
when  the  latter  was  paid  off,  the  surplus  which  remained  still 
belonged  to  the  husband's  devisees.  Accordingly,  as  the  wife  had, 
by  her  husband's  will,  a  life  interest  in  the  land  sold,  she  rightfully 
received  the  income  of  the  surplus  money  during  her  life.  On  her 
death  the  ultimate  remainder  in  fee,  created  by  her  husband's  will, 
vested  in  possession,  and  hence  the  owner  of  that  remainder  then 
became  the  absolute  owner  of  said  surplus,  whether  it  had  the 
quality  of  money  or  land.  If  it  had  the  quality  of  money,  it  hence- 
forth devolved  as  money,  while,  if  it  had  the  quality  of  land,  it 
devolved  as  land.  The  court  held  that  it  had  the  quality  of  land, 
whether  rightly  or  not,  I  shall  inquire  hereafter. 

If  land  which  is  exchanged  for  money  belong  to  two  or  more 
co-owners,  the  money  received  in  exchange  will  belong  to  them 
respectively  in  the  same  proportions  as  the  land  did  before.  Jf, 
however,  the  land  belong  (for  example)  to  A  for  life,  remainder 
to  B  in  fee,  the  interest  of  each  will  be  separate  and  distinct  from 
that  of  the  other,  as  if  A  owned  Black  Acre  and  B  owned  White 
Acre,  and  therefore,  though  they  join  in  making  a  sale,  A  will  be 
entitled  to  so  much  of  the  money  as  represents  his  life  estate,  and 
B  will  be  entitled  to  the  remainder.^  But  if  the  land  be  held  by  a 
trustee  for  A  and  B,  and  be  sold  by  the  trustee,  he  will  hold  the 
money  as  he  held  the  land,  namely,  for  A  for  life,  and  then  for  B 
absolutely. 

There  is  one  notable  exception  to  the  rule  that  when  land  is 
exchanged  for  money  the  money  belongs  to  the  person  who  owned 
the  land  when  the  exchange  was  made ;  for,  when  an  ordinary  bi- 
lateral contract  is  made  for  the  sale  and  purchase  of  land,  and, 
pending  the  contract,  the  vendor  dies,  and  then  the  contract  is 
performed,  the  land  will  have  to  be  conveyed  to  the  purchaser  by 
the  vendor's  heir  or  devisee  to  whom  it  will  have  devolved  on  the 
vendor's  death,  and  yet  the  money  will  have  to  be  paid  to  the 
vendor's  executor.  Why  is  this?  Primarily,  it  is  because  the  land 
of  a  deceased  person  devolves  upon  his  heir  or  devisee,  while  his 
personal  estate,  including  his  cJioses  en  action,  devolves  upon  his 
executor.     Consequently,  when  a  vendor  dies,  pending  a  contract 

1  Pedder's  Settlement,  In  re,  5  D.  M.  &  G.  890. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        26g 

for  the  sale  of  his  land,  the  land  will  devolve  on  his  heir  or  devisee, 
and  he  alone  therefore  can  convey  it  to  the.  purchaser,  while  the 
contract,  in  respect  to  the  right  which  it  confers  upon  the  vendor 
as  well  as  the  obligation  which  it  imposes  upon  him,  devolves  upon 
his  executor,  and  therefore  he  alone  is  entitled  to  receive  the 
money  from  the  purchaser.  Yet,  if  the  executor  attempt  to  en- 
force the  contract  at  law,  he  will  encounter  an  insuperable  obstacle, 
for  he  cannot  show  a  breach  of  the  contract  by  the  purchaser  with- 
out showing,  on  his  own  part,  ability,  willingness,  and  an  offer  to 
convey  the  land  on  receiving  the  money,  and  that,  of  course,  he 
cannot  show.  His  only  remedy,  therefore,  is  a  bill  in  equity  for 
specific  performance,  and  equity  permits  him  to  file  such  a  bill 
against  the  purchaser,  making  the  vendor's  heir  or  devisee  a  co- 
defendant,  and  a  decree  is  made  against  each  defendant,  namely, 
that  the  purchaser  pay  the  money  to  the  plaintiff  on  receiving  a 
conveyance  of  the  land,  and  that  the  heir  or  devisee  convey  the 
land  to  the  purchaser  on  his  paying  the  money  to  the  plaintifif; 
and,  though  the  plaintifif  does  not  accomplish  this  result  on  the 
strength  of  his  legal  right  alone,  yet  the  only  principle  of  equity 
which  he  has  to  invoke  is  the  principle  that  the  vendor's  heir  or 
devisee,  not  being  a  purchaser  for  value  of  the  land,  stands  in  the 
shoes  of  the  vendor,  and  so  must  perform  his  contract  to  convey 
the  land. 

As  the  vendor's  executor  may  file  a  bill  against  the  vendee, 
making  the  vendor's  heir  or  devisee  a  co-defendant,  and  have  a 
decree  as  stated  above,  so,  of  course,  the  vendee  may  file  a  bill 
against  the  vendor's  heir  or  devisee,  making  the  executor  a  co- 
defendant,  and  have  a  decree  that  the  heir  or  devisee  convey  the 
land  to  the  plaintifif  on  his  paying  the  money  to  the  executor. 

The  foregoing  exception  has,  however,  been  unwarrantably 
extended  to  a  class  of  cases  to  which  it  is  not  at  all  applicable, 
namely,  to  cases  in  which  an  owner  of  land  gives  to  another  per- 
son an  option  of  purchasing  the  land  at  a  certain  price  and  within 
a  certain  time,  and  dies,  pending  the  option,  and  then  the  option  is 
exercised  and  the  land  conveyed :  for  it  has  been  held  that,  while 
the  land  has  devolved  upon  the  heir  or  devisee  of  the  deceased,  and 
so  must  be  conveyed  by  him,  yet  the  money  must  be  paid  to  the 
executor.^     In  short,  it  has  been  held,  as  to  the  point  now  under 


1  Lawes  v.  Bennett,  stated  by  Lord  Eldon  in  Ripley  v.  Waterworth,  7  Ves.  436,  and 
afterwards  reported  in  i  Cox  167;  Townley  v.  Bedwell,  14  Ves.  591 ;  Collingwood  v. 


270        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

consideration,  that  there  is  no  difference  between  an  unilateral 
contract  giving  an  option  of  purchasing  land,  and  the  ordinary  bi- 
lateral contract  for  the  sale  and  purchase  of  land.  There  is,  how- 
ever, this  very  important  and  radical  difference  between  these  two 
species  of  contract,  namely,  that  in  the  latter  the  vendor  is  not 
only  under  an  obligation,  but  also  has  a  correlative  right,  his  obli- 
gation being  to  vest  in  the  purchaser  a  good  title  to  the  land  on 
receiving  the  purchase  money,  and  his  right  being  to  receive  the  ^ 
purchase  money  on  performing  his  obligation,  while  in  the  former'' 
the  giver  of  the  option,  though  he  is  under  an  obligation,  has  no 
right  whatever.  There  is  this  difference,  moreover,  between  the 
obligations  incurred  in  the  two  cases,  namely,  that  the  obligation 
of  a  vendor  is  generally  subject  to  no  condition,  except  that  of  a 
concurrent  performance  by  the  purchaser  of  the  obligation  resting 
on  him  (the  performance  of  which  obligation  is  a  condition  implied 
by  law),i  while  the  obligation  incurred  by  the  giver  of  an  option  is 
subject  to  the  condition  of  the  concurrent  payment  of  the  purchase 
money,  —  which  is  a  condition  pure  and  simple,  and  which  is  either 
express  or  implied  in  fact.^ 

A  notion  seems  to  have  prevailed  that,  when  an  option  of  pur- 
chasing land  has  been  given,  the  receiver  of  the  option  becomes 
bound  as  soon  as  he  decides  to  avail  himself  of  the  option,  and 
notifies  the  giver  of  the  option  that  he  has  so  decided.  This, 
however,  is  assuming  that  an  option,  instead  of  being  an  unilateral 
contract,  is  an  offer  to  make  a  bilateral  contract,  and  that  the  giv- 
ing of  notice  as  above  is  an  acceptance  of  the  offer,  and  so  com- 
pletes the  contemplated  bilateral  contract.  An  option,  however, 
being  an  unilateral  contract,  can  never  become  a  bilateral  contract, 


Row,  26  L.  J.,  Chan.  649;  Weeding  v.  Weeding,  i  J.  &  H.  424 ;  Isaacs,  In  re,  [1894] 
3  Ch.  506. 

In  Urant  v.  Vause,  I  Y.  &  Coll.  C.  C.  580,  Emuss  v.  Smith,  2  De  G.  &  Sm.  122, 
Walker,  Ex  parte,  i  Dr.  508,  and  Edwards  v.  West,  7  Ch.  D.  85S,  the  court  declined  to 
follow  Lawes  v.  Bennett,  holding  it  not  to  be  applicable,  though  it  seems  very  doubtful 
whether  the  decision  in  either  of  them  was  consistent  with  Lawes  v.  Bennett.  In  In 
re  Adams  and  the  Kensington  Vestry,  27  Ch.  D.  394,  the  court  also  declined  to  follow 
Lawes  v.  Bennett,  though  without  disapproving  of  it,  and  in  truth  Lawes  v.  Bennett 
was  not  there  an  authority  for  either  party,  the  question  before  the  court  being  a  wholly 
different  one,  namely,  whether  the  right  created  by  a  contract  giving  an  option  devolves 
in  equity,  on  the  death  of  its  owner,  upon  his  heir  or  personal  representative,  —  a 
question  which  will  be  considered  hereafter. 

1  See  my  Summary  of  Contracts,  s.  32.  I  shall  not  apologize  to  the  reader  for  re- 
ferring him  to  this  little  book  while  discussing  the  subject  of  "  Options." 

2  See  idem. 


A   BRIEF  SCrRVEY  OF  EQUITY  JURISDICTION.        2/1 

and  therefore  differs  entirely  from  an  offer,^  and  here  it  is  assumed 
that  it  is  an  "  option,"  and  not  an  "  offer,"  that  we  are  deahng 
with. P  An  option,  then,  being  a  conditional  unilateral  contract,  a 
notice  by  the  receiver  of  the  option  that  he  avails  himself  of  it 
is,  if  it  have  any  legal  significance,  the  performance  of  a  condition 
pure  and  simple.  Moreover,  while  the  giver  of  an  option  may 
with  propriety  require  such  a  notice  to  be  given,  he  will  not  be 
entitled  to  have  it  given  unless  he  expressly  require  it  by  the  terms 
of  his  contract,  i.  e.,  the  giving  of  such  a  notice  can  be  only  an 
express  condition  ;  '^  nor  can  it  be  the  only  condition  of  such  a 
contract,  for,  if  it  were,  its  performance  would  enable  the  receiver 
of  the  option,  while  himself  remaining  perfectly  free,  to  compel  the 
giver  of  the  option  to  convey  the  land,  not  only  without  receiving 
the  purchase  money,  but  without  having  any  remedy  for  recover- 
ing it.  The  concurrent  payment  of  the  money  must,  therefore,  be 
a  further  condition,  and  that  too  by  a  necessary  implication  of 
fact,  if  it  be  not  express.' 

When,  therefore,  an  option  is  exercised  after  the  death  of  the 
person  giving  it,  how  can  his  executor  obtain  the  money  which  the 
person  exercising  the  option  must  pay  in  order  to  get  the  land? 

1  My  Summary  of  Contracts,  written  twenty-five  years  ago,  contains,  at  section  179, 
the  following  passage :  "  Care  must  be  taken  to  observe  a  distinction  which  is  apt  to 
be  lost  sight  of.  There  is  no  doubt  that  A  may  make  a  binding  promise  to  sell  certain 
property  to  B  on  certain  terms,  while  B  is  left  perfectly  free  to  buy  the  property  or  not ; 
and  such  a  promise  will,  in  most  respects,  confer  the  same  rights  upon  B  as  if  he  had 
made  a  counter-promise  to  buy.  But  such  a  case  differs  materially  from  that  of  a  mere 
offer  to  sell  property.  It  is  not  an  offer  contemplating  a  bilateral  contract,  but  it  is  a 
complete  unilateral  contract.  All  that  remains  to  be  done  is  for  B  to  perform  the 
condition  of  the  promise  by  paying  the  price,  and  for  A  to  perform  the  promise.  The 
contract  will  remain  unilateral  until  it  is  performed,  or  otherwise  comes  to  an  end.  Of 
course  A  and  B  together  can  at  any  moment  substitute  for  it  a  bilateral  contract,  but 
they  cannot  strictly  convert  it  into  a  bilateral  contract ;  still  less  can  this  be  done  by  an 
act  of  B  alone.  Even  if  B  should  subsequently  make  a  binding  promise  to  buy  the 
property,  the  result  would  not  be  a  bilateral  contract,  but  ivio  unilateral  contracts;  the 
two  promises  would  not  be  the  consideration  of  each  other,  and  each  would  have  to  be 
supported  by  some  other  sufficient  consideration."  In  Emuss  v.  Smith,  2  De  G.  & 
Sm.  722,  735,  Knight  Bruce,  V.  C,  said :  "  How  this  case  would  have  stood  if  the  con- 
tract of  1838  had  been  an  absolute  or  ordinary  contract  of  sale,  binding  one  party  to 
sell  and  the  other  to  buy,  and  not,  as  it  was,  a  contract  resting  merely  in  the  option  of 
the  person  with  whom  the  testator  entered  into  the  contract,  it  remaining  uncertain, 
during  the  whole  of  the  testator's  life,  whether  the  purchase  would  ever  take  place  or 
not,  I  need  not  say." 

2  See  iiiem,  s.  32. 

8  Ibid.  See  also  Weeding  v.  Weeding,  i  J.  &  H.  424,  and  in  In  re  Adams  and  the 
Kensington  Vestry,  27  Ch.  D.  394,  in  each  of  which  the  payment  of  the  money  was 
made  an  express  condition. 


2/2        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

The  deceased  had  no  rights  whatever  under  the  contract,  nor  has 
his  executor.  The  person  exercising  the  option  .pays  the  money 
voluntarily,  and  his  only  inducement  to  pay  it  is  his  desire  to  obtain 
the  land.  Why  then  should  he  pay  it  to  the  executor  of  the 
deceased?  Such  a  payment  will  not  help  him  to  get  the  land. 
Moreover,  if  he  pays  it  to  the  executor,  he  cannot  pay  it  to  any 
one  else,  and  yet  he  must  pay  it  to  some  one  else  in  order  to  get 
the  land,  namely,  to  the  heir  or  devisee  of  the  deceased.  Why? 
Because  the  latter  owns  the  land,  and  can  alone  convey  it.  Will 
equity  compel  him  to  convey  it  on  receiving  the  money?  Yes. 
Why?  Because,  having  received  it  from  the  deceased  without 
paying  any  value  for  it,  equity  regards  him  as  standing  in  the 
shoes  of  the  deceased,  and  as  subject,  therefore,  to  the  same 
obligation  in  equity  to  convey  the  land  to  which  the  deceased  was 
subject  at  law.  Can  equity  compel  the  heir  or  devisee  to  convey 
the  land  without  payment  to  him  of  the  money?  No.  Why  not? 
Because  it  could  not  have  compelled  the  deceased  to  convey  it 
without  payment  of  the  money  to  him,  and  to  compel  the  heir  or 
devisee  to  do  so  would  be  to  hold  him  to  be  under  a  greater  obli- 
gation in  equity  than  the  deceased  was  under  at  law,  i.  e.,  to  be 
bound  absolutely,  while  the  deceased  was  bound  only  conditionally. 
How  is  it  then  that  the  courts  have  held  that  the  executor,  and 
not  the  heir  or  devisee,  is  the  person  who  is  entitled  to  the  money? 
The  first  answer  is  that  the  courts  have  never  so  held  until  the 
contract  has  been  carried  completely  into  execution  by  the  pay- 
ment of  the  money  to  the  heir  or  devisee,  and  the  conveyance  of 
the  land  by  him.  The  second  answer  is  that,  when  the  contract 
has  thus  been  carried  compietely  into  execution,  the  courts  have 
held  that  the  executor  is  entitled  to  receive  the  money  from  the 
heir  or  devisee.  Upon  what  theory  is  this?  It  can  be  only  upon 
the  theory  that  the  money,  when  paid  in  exchange  for  the  land,  is 
a  part  of  the  personal  estate  of  the  deceased,  and  that  can  be  only 
.7  upon  the  theory  that  the  exercise  of  the  option  relates  back  to  the 
*"  time  when  the  contract  giving  the  option  was  made;   and  accord- 

ingly it  is  upon  that  ground  that  the  courts  have  generally  sought 
to  vindicate  their  decisions.  Nothing,  however,  could  show  more 
conclusively  that  these  decisions  have  no  solid  ground  to  rest  upon 
thaii  the  fact  that  they  can  be  supported  by  no  better  argument 
than  this.  The  doctrine  of  relation  is  a  legal  fiction,  and  a  court 
can  be  justified  in  proceeding  upon  a  fiction  only  when  it  is  neces- 
sary for  the  purposes  of  justice,  or  at  least  when  the  fiction  is 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        273 

promotive  of  justice.  ///  fictioiic  Juris  semper  acqiiitas  existit}  If, 
however,  the  decisions  in  question  are  to  be  taken  as  representing 
the  doctrine,  this  maxim  ought  to  be  so  modified  as  to  read,  "  /;/ 
ficticne  jjiris  semper  iniquitas  existit"  ;  for  the  reader  will  observe 
that,  up  to  the  time  when  the  money  is  paid  and  the  land  conveyed, 
the  executor  has  no  right  whatever  either  to  the  money  or  the 
land,  and  yet  the  moment  that  the  money  is  exchanged  for  the 
land,  and  the  land  for  the  money,  the  executor,  though  not  a  party 
to  the  exchange,  nor  in  any  way  concerned  with  it,  is,  according 
to  these  decisions,  entitled  to  the  money,  not  merely  in  equity,  but 
at  law  as  well,  for,  as  to  such  a  right,  there  is  no  difference  between 
law  and  equity.^ 

It  may  be  added  that  the  doctrine  of  relation  involved  in  these 
decisions  proves  too  much,  for  it  proves  that,  if  a  rent  be  granted 
in  fee-simple  out  of  certain  land  subject  to  a  perpetual  right  in  the, 
_o\vp£r  of  the  land  for  the  time  being  to  purchase  the  rent  on  cer- 
tain terms,  and,  at  the  end  of  five  hundred  years,  such  purchase  be 
made,  the  money  will  belong  to  the  personal  representative  of  him 
w h o  granted  the  rent.^^ 

It  is  commonly  assumed  that  the  effects  produced  by  an  ex- 
change of  money  for  land  are  the  same,  mutatis  mutandis,  as  those 
produced  by  an  exchange  of  land  for  money,  and  that  the  effects 
would  be  absolutely  the  same,  but  for  the  fact  that,  when  a  person 
dies  intestate,  his  money  and  land  devolve  upon  different  persons. 
In  truth,  however,  there  are  other  differences  between  money  and 
land,  in  respect  to  their  devolution,  which  are  of  much  greater  legal 
importance  than  the  fact  that  they  devolve  upon  different  persons. 
It  is  often  assumed,  also,  that  the  heir  and  next  of  kin  of  a 
person  who  dies  intestate  are  true  analogues  of  each  other,  while, 
in  truth,  there  is  no  person  who  occupies  in  respect  to  personal 
estate  the  position  occupied  by  the  heir  in  respect  to  land.  When 
a  person  dies  intestate  as  to  his  land,  the  same  descends  instantly 
and  by  operation  of  law  to  his  heir,  who  becomes  the  owner  of  it 
absolutely  and  for  his  own  benefit,  while  the  personal  property  of 
one  who  dies,  whether  testate  or  intestate,  instantly  and  by  opera- 


1  See  my  Summary  of  Contracts,  s.  7. 

2  When  the  option  is  given  by  will,  the  courts  do  noi  hold  that  the  exercise  of  the 
option  can  relate  back  to  a  time  prior  to  the  testator's  death.  In  re  Goodall,  65  L.  J., 
Chan.  63. 

3  See  Graves's  Minors,  15  Irish  Chan.  357,  where  a  rent  was  granted  in  1709  and 
redeemed  in  1S62. 

18 


274        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

tion  of  law,  devolves  upon  his  executor  or  administrator,  who  be- 
comes the  absolute  owner  of  it  both  at  law  and  in  equity,  though 
only  in   his  official  capacity,    and   not   for  his   own  benefit.     For 

Q)  whose  benefit,  then,  does  he  hold  it?     First,  for  the  benefit  of  the 
creditors  of  the  deceased,  i.  e.,  subject  to  their  right  to  have  their 
,.\    debts~paid  out  of  it;  secondl>^J"or  the  benefit_qfj:he  legatees^, 
the  deceased^so  far  as  he  dies  testate;   thirdly,  for  the  benefit  of 

5  J  the  next  of  kin  of  the  deceased,  i.  e.,  the  persons  pointed  out  by  the 
Statute  of  Distributions,^  so  far  as  he  dies  intestate.  What  are 
the  benefits  to  which  legatees  and  next  of  kin  are  entitled?  First, 
specific  legatees  are  entitled  to  receive  the  specific  articles  given  to 
them,  unless  their  sale  shall  be  necessary  for  the  payment  of  debts  ; 
secondly,  pecuniary  legatees  are  entitled  to  receive  the  amount  of 
their  respective  legacies  in  money,  if  the  assets  are  sufficient  to 
pay  them  after  creditors  and  specific  legatees  are  satisfied  ;  thirdly, 
the  residuary  legatees  or  next  of  kin,  as  the  case  may  be,  are  en- 
titled to  be  paid  in  money  any  residue  which  remains,  and  for  that 
purpose  to  have  all  the  assets  turned  into  money.  It  will  be  seen, 
therefore,  that  no  legatee  or  next  of  kin  can  ever  become  owner 
of  any  part  of  the  personal  estate  of  the  deceased,  except  through 
his  executor  or  administrator,  and  that  a  specific  legatee  alone  is 
ever  entitled  to  become  owner  of  any  specific  part  of  the  personal 
estate  of  the  deceased.  When  does  a  specific  legatee  become  the 
actual  owner  of  the  thing  specifically  bequeathe^  to  him?  Only 
when  the  executor  or  administrator  delivers  it  to  him,  or  assents 
to  his  receiving  it,  and  thus  relinquishes  his  right  to  sell  it  for  the 
payment  of  debts.  How  does  the  law  secure  to  legatees  and  next 
of  kin  the  benefits  to  which  they  are  entitled?  In  case  of  legatees, 
by  making  it  the  duty  of  executors  and  administrators  to  do  what- 
ever legatees  are  entitled  to  have  done,  — which  duty  equity  will 
require  them  to  perform  specifically.  In  respect  to  next  of  kin, 
the  Statute  of  Distributions  imposes  a  similar  duty,  and  with  simi- 
lar consequences.  Moreover,  wherever  a  duty  is  imposed  upon  an 
executor  or  administrator  in  favor  of  legatees  and  next  of  kin,  of 
course  a  correlative  right  is  conferred  upon  the  legatees  or  next  of 
kin,  and  it  is  by  virtue  of  this  correlative  right  that  the  performance 
of  the  duty  is  enforced. 

Suppose,  then,  a  testator  directs  his  executor  to  invest  his  re- 
siduary personal  estate    in  land,  and  to  settle  the  land  on  certain 

^  22  &  23  Car.  II.,  c.  10. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        275 

persons  for  their  lives,  with  remainders  to  their  respective  sons  suc- 
cessively in  tail  male,  and  that  the  executor  does  as  thus  directed, 
the  land  purchased  being  conveyed  to  him  in  fee-simple  by  the 
seller,  and  then  being  conveyed  by  him  according  to  the  direction 
in  the  will.  Of  course,  the  ultimate  reversion  in  fee-simple,  not 
having  been  disposed  of  by  the  testator,  will  remain  in  the  executor, 
and  will  be  held  by  him  for  the  benefit  of  the  testator's  next  of 
kin.  If,  then,  all  the  tenants  for  life  die  without  issue,  all  the  limi- 
tations of  the  settlement  will  be  exhausted,  and  the  executor's 
reversion  will  become  a  fee-simple  in  possession,  and  the  executor 
will  still  hold  the  same  for  the  benefit  of  the  next  of  kin.  What, 
then,  will  be  the  rights  of  the  latter?  Simply  to  have  the  land  sold 
by  the  executor  and  its  proceeds  divided  among  them  according 
to  the  Statute  of  Distributions.  Of  course,  it  will  be  open  to  them 
to  make  an  arrangement  with  the  executor  to  convey  the  land  to 
them,  instead  of  selling  it,  but  they  will  have  no  right  to  require 
him  to  convey  it  to  them.  If,  then,  one  of  the  next  of  kin  die  in- 
testate at  any  time  between  the  original  purchase  of  the  land  by 
the  executor  and  the  sale  of  it  by  him,  how  will  his  right  devolve? 
Of  course,  it  will  devolve  only  as  personal  estate,  as  it  is  only  a 
right  to  receive  a  sum  of  money,  and  so  it  was  held  to  devolve  by 
Sir  W.  Page  Wood,  V.  C.  (afterwards  Lord  Chancellor  Hatherley), 
when  the  question  arose  before  him,  and  for  the  first  time,  in  Rey- 
nolds V.  Godlee.^  »His  decision  was,  however,  afterwards  overruled 
by  Sir  G.  Jessel,  M.  R.,^  who  held  that  the  land  itself  belonged  to 


1  John.  536,  582. 

2  Curteis  v.  Wormald,  10  Ch.  D.  172.  The  judgment  of  Sir  G.  Jessel  in  this  case, 
the  facts  of  which  are  substantially  those  supposed  in  the  text,  contains  one  or  two 
things  which  require  to  be  noticed.  According  to  the  report  the  testator  directed 
his  trustees,  and  not  his  executors,  though  the  same  persons  were  both  executors  and 
trustees,  to  invest  his  residuary  personal  estate  in  land,  and  upon  this  Sir  G.  Jessel 
remarks:  (174)  "  A  testator  directed  his  trustees — for,  although  the  same  persons  may 
have  been  appoint^  executors,  they  are  for  this  purpose  trustees  and  trustees  only  —  to 
lay  out  his  residuarj\personal  estate  in  the  purchase  of  real  estate."  He  afterwards  says  : 
(175)  "  The  executors  have  ceased  to  have  anything  whatever  to  do  with  the  matter. 
They  have  paid  over  the  legacy  to  the  legatee,  who  happens  to  be  a  legatee-trustee,  and 
who  holds  it  by  law  under  the  Statute  of  Distributions,  as  trustee  for  the  next  of  kin,  and 
no  one  else."  These  statements  are  surprising.  If  the  will  had  disposed  of  personal 
estate  only,  there  would  have  been  no  possible  reason  for  appointing  trustees,  nor  is 
there  the  slightest  reason  to  suppose  that  any  would  have  been  appointed.  The  will 
began,  however,  with  devising  the  testator's  real  estate  in  strict  settlement,  and,  having 
been  made  in  iSiS,  it  doubtless  contained  the  usual  limitations  to  trustees  to  support 
contingent  remainders  ;  and  the  fact  of  there  being  trustees  is  thus  accounted  for. 
The  use  of  the  word  trustees  by  the  testator,  however,  in  connection  with  his  personal 


2^6        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  next  of  kin  in  equity,  and  hence  devolved  as  land,  and  his  de- 
cision was  affirmed  by  the  Court  of  Appeal  in  Chancery.  I  am, 
however,  bound  to  express  the  opinion  that  Sir  W.  Page  Wood 
was  right,  and  that  Sir  G.  Jessel  and  the  Court  of  Appeal  in 
Chancery  were  wrong. 

There  is,    however,  one   argument   in    favor  of  the  decision  in 
Curteis  v.  Wormald   which,  as  it  was  not  alluded  to   by  Sir  G. 


estate  was  evidently  a  mistake,  and  should  have  been  disregarded.  The  testator  made 
no  bequest  of  his  personal  estate  to  the  trustees,  nor  could  he  have  bequeathed  it  to 
the  trustees  as  such,  as  it  would  already  be  in  them  in  another  character  by  operation 
of  law  from  the  moment  of  the  testator's  death,  and  must  remain  in  them  in  that  charac- 
ter until  it  was  fully  administered,  and  it  had  not  been  fully  administered  when  the 
case  was  decided.  How  Sir  G.  Jessel  gets  it  into  the  hands  of  the  trustees  as  legatees, 
he  does  not  explain.  His  object,  however,  in  seeking  to  accomplish  that  result  is 
plain  enough,  for  he  seeks  to  show  that,  when  the  executors  have  paid  over  the  resi- 
due of  the  personal  estate  to  themselves  as  trustees,  they  will  have  completed  their 
administration  of  the  estate  and  become  functi  officio,  and  that  henceforth  they  will 
hold  first  the  money  and  then  the  land  as  trustees  for  the  next  of  kin,  subject  of  course 
to  the  limitations  of  the  settlement  which  the  will  directs.  The  administration  of  an 
estate  is  not  completed,  however,  until  the  property  has  all  gone  into  the  hands  of 
persons  who  own  it  absolutely.  If,  therefore,  a  part  of  the  estate  goes  into  the  hands 
of  a  person  who  has  a  limited  interest  in  it  only,  the  consequence  will  be  that 
the  ultimate  reversion  will  still  be  a  part  of  the  testator's  estate  unadministered,  and 
will  therefore  be  vested  in  his  executor  as  such,  and  consequently,  when  that  limited 
interest  expires,  the  property  must  return  to  the  possession  of  the  executor  in  order  that 
he  may  complete  his  administration  of  it.  Even  assuming,  therefore,  that  Sir  G.  Jessel 
succeeded  in  getting  the  residue  of  the  personal  estate  out  of  the  hands  of  the  execu- 
tors as  such  and  into  the  hands  of  the  same  persons  as  trustees,  and  that  the  latter 
acquired  such  residue  absolutely  at  law,  the  result  would  be  ouly  a  useless  circuity,  as 
there  would  be  an  immediate  resulting  trust  of  such  residue  to  the  executors,  subject 
only  to  the  limitations  of  the  settlement.  In  short,  the  trustees  in  their  character  of 
trustees  cannot  be  trustees  for  the  next  of  kin,  for  they  must  be  trustees  for  them- 
selves as  executors.  (For  this  absurd  phraseology  Sir  G.  Jessel  is  himself  responsible.) 
There  is,  however,  another  objection  to  the  trust  which  Sir  G.  Jessel  seeks  to  estab- 
lish, namely,  that  the  next  of  kin  cannot  be  the  cestnis  que  trust  in  such  a  trust.  By 
next  of  kin  Sir  G.  Jessel  means  (and  properly  so)  next  of  kin  as  such,  ;'.  e.,  as  crea- 
tures of  the  Statute  of  Distributions,  and  next  of  kin  in  that  character  have  only  such 
rights  as  the  Statute  gives  them,  and  the  only  right  which  the  Statute  gives  them  is  the 
right  to  require  the  personal  representative  of  the  deceased  to  perform  the  duties 
which  the  Statute  imposes  upon  him  as  such. 

The  Statute  of  Distributions  was  passed  at  a  time  when  the  administration  of  the 
estates  of  deceased  persons  was  within  the  exclusive  jurisdiction  of  the  spiritual  courts, 
the  jurisdiction  now  and  for  a  long  time  past  exercised  by  courts  of  equity  not  having 
been  assumed  till  a  later  period.  Accordingly  the  Statute  makes  not  the  slightest 
reference  to  courts  of  equity  nor  to  the  subject  of  trusts,  —  a  subject  as  entirely  foreign 
to  the  spiritual  courts  as  it  is  to  courts  of  common  law.  So  far  as  regards  the  matters 
now  under  consideration,  the  Statute  simply  lays  its  commands  on  the  personal  repre- 
sentative of  the  deceased  and  directs  the  spiritual  courts  to  see  that  those  commands 
are  obeyed. 

2 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        277 

Jessel  nor  by  the  judges  of  the  Court  of  Appeal,  I  have  not  yet 
mentioned,  but  which  it  is  proper  that  I  should  now  state  and 
briefly  consider. 

Prior  to  the  Statute  of  Distributions,  executors  owed  no  duty 
except  to  legatees,  and  if  anything  remained  after  debts  and 
legacies  were  paid  the  executor  was  entitled  to  retain  it  for  his 
own  benefit.  Nor  was  any  change  made  in  that  respect  by  the 
Statute  of  Distributions,  as  that  Statute  applied  only  to  adminis- 
trators. After  courts  of  equity,  however,  had  assumed  that  juris- 
diction over  the  estates  of  deceased  persons  which  they  have  ever 
since  exercised,  they  soon  became  impressed  with  the  injustice  of 
permitting  executors  to  reap  the  benefit  of  every  failure  by  their 
testators  to  make  an  efTective  disposition  of  their  residuary  per- 
sonal estate,  and  felt  themselves  authorized  to  follow  the  analogy 
of  the  Statute  to  the  extent  of  requiring  executors  to  distribute 
among  the  testator's  next  of  kin  any  residue  of  his  personal  estate 
which  was  not  effectively  disposed  of,  whenever  they  could  find  in 
the  will  evidence  to  show  that  the  testator  did  not  intend  any  such 
residue  to  go  to  the  executor  for  his  own  benefit;  and,  finally,  in 
1830,  by  the  Statute  of  1 1  Geo.  IV.  &  i  Wm.  IV.,  c.  40,  the  burden 
of  proof  was  shifted  from  the  next  of  kin  to  the  executor,  the  Statute 
declaring  that  the  next  of  kin  shall  be  entitled  to  any  residue  of  the 
personal  estate  which  is  undisposed  of,  unless  it  shall  appear  by  the 
will  that  the  executor  was  intended  to  take  such  residue  beneficially. 
While,  however,  the  courts  of  equity  followed  the  analogy  of  the 
Statute  in  the  relief  which  they  gave,  they  acted  inconsistently  with 
the  Statute  in  their  mode  of  giving  such  relief,  for,  instead  of 
simply  directing  executors  to  distribute  such  residue  amoag  the 
next  of  kin,  they  declared  them  to  be  trustees  of  such  residue  for 
the  next  of  kin,  and  1 1  Geo.  IV.  &  i  VVm.  IV.,  c.  40,  followed  in' the 
footsteps  of  the  courts. 

Does  then  this  Statute  prove  that  in  Curteis  v.  Wormald  the 
executors  ever  held  the  land  purchased  by  them,  or  the  ultimate 
reversion  therein,  not  as  executors,  but  as  trustees?  For,  if  it 
does,  and  if,  during  the  time  that  they  so  held  it,  one  or  more  of 
the  persons  died  who  were  then  entitled  to  a  share  of  the  testator's 
residuary  personal  estate,  it  will  follow  that  any  person  so  dying 
was  at  the  time  of  his  death  a  cestui  que  trust  of  such  land,  and 
that  his  interest  as  such  descended  to  his  heirs,  unless  the  deceased 
had  disposed  of  it  otherwise  by  his  will.  It  is  submitted,  how- 
ever, that  the  question  just  put  must  be  answered  in  the  negative. 


2/8        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

I.  There  is  no  pretense  for  saying  that  the  executors  held  the  land 
in  question  in  any  different  character  from  that  in  which  they  held 
all  the  residuary  personal  estate.  2.  The  Statute  must  be  so  con- 
strued, if  possible,  as  not  to  make  any  change  in  the  office  of 
executor.  3.  It  must  therefore  be  so  construed,  if  possible,  as 
not  to  change  the  character  in  which  an  executor  holds  the  resid- 
uary personal  estate  at  an  earlier  date  than  that  at  which  the 
testator  himself  could  have  directed  such  a  change  to  be  made. 
4.  A  testator  cannot  direct  that  his  executor  shall  cease  to  hold 
his  residuary  personal  estate  as  executor,  and  thenceforth  shall 
hold  the  same  as  trustee,  until  the  estate  shall  have  been  fully 
administered.  5.  An  estate  is  not  fully  administered  until  all  the 
specific  property  has  been  converted  into  money,  except  such 
articles  as  have  been  specifically  bequeathed  or  such,  if  any,  as  have 
been  taken  by  the  residuary  legatees  or  next  of  kin  by  mutual 
arrangement  between  them  and  the  executor.  6.  The  purposes 
of  the  Statute  will  be  entirely  satisfied  by  holding  that  an  executor 
ceases  to  hold  an  undisposed  of  residue  as  executor  when  it  has  all 
been  converted  into  money,  its  amount  precisely  ascertained,  and 
when  it  has  consequently  become  his  duty  to  pay  it  over  to  the 
next  of  kin. 

It  may  be  added  that  the  relation  of  trustee  and  cestui  que  trust 
can  never  exist  between  an  executor  as  such  and  any  other  person 
or  persons  whatever,  and  therefore  that  the  next  of  kin  in  Curteis 
V.  Wormald  were  not  ccstiiis  que  trust  of  the  land  in  question,  if 
such  land  was  still  held  by  the  executors  as  such.  It  may  also  be 
added  that  a  trustee  as  such  never  has  power  in  equity  to  sell  land, 
unless  such  power  be  actually  conferred  upon  him  by  the  creator 
of  the  trust ;  and  therefore,  according  to  the  decision  in  Curteis  v. 
Wormald,  the  executors,  in  their  character  of  trustees,  had  no  power 
to  sell  the  land  in  question  for  the  purpose  of  dividing  the  pro- 
ceeds of  the  sale  among  the  next  of  kin,  however  necessary  a  sale 
might  be. 

Returning  now  to  the  rule  stated  at  page  263,  it  follows  from 
thence  that,  if  a  testator's  land  be  sold  after  his  death,  pursuant  to 
a  direction  or  under  a  power  contained  in  his  will,  the  proceeds 
of  the  sale  will,  except  so  far  as  they  go  to  satisfy  a  charge  or 
charges  on  the  land,^  or  are  otherwise  effectively  disposed  of  by  the 
will,   belong  to  the  testator's  heir  or  devisee  both  at  law  and  in 

1  Randall  v.  Bookey,  Ch.  Free.  162,  2  Vern.  425 ;  Stonehouse  v.  Evelyn,  3  P. 
Wms.  252. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         279 

equity;  ^  and  if  such  land  be  sold  by  a  trustee  to  whom  the  testator 
has  devised  it  with  a  direction  or  authority  to  sell  it,  the  proceeds 
of  the  sale  will,  subject  to  the  qualifications  just  stated,  belong  to 
the  testator's  heir  in  equity,  though  they  will  belong  to  the 
trustee  at  law.  It  is  plain,  therefore,  that  a  testator  has  the  power 
to  direct  or  authorize  a  sale  of  his  land  after  his  death  only  for 
the  purpose  of  making  some  disposition  of  the  proceeds  of  the 
sale,  or  of  some  part  thereof,  or  of  satisfying  some  charge  or 
charges  on  the  land,  either  already  existing  or  created  by  the  will ; 
for,  in  the  absence  of  any  disposition  of  the  proceeds  of  the  sale, 
and  of  any  charge  to  be  satisfied  out  of  them,  they,  as  well  as  the 
land,  wjll  belong  wholly  to  the  testator's  heir  or  devisee,^  and 
therefore  such  heir  or  devisee  alone  can  make  an  effective  sale  of 
itj^ofconfer  an  effective  power  or  authority  to  sell  it,  and  any 
attempt  by  the  testator  to  direct  or  authorize  its  sale  will  be  in- 
valid and  inoperative.^     If,  on  the  one  hand,  the  testator  in  terms 

1  In  Pickering  v.  Lord  Stamford,  3  Ves.  492,  493-494,  Lord  Loughborough  said : 
"  Neither  an  heir  at  law,  nor  by  parity  of  reason  next  of  kin,  can  be  barred  by  anything 
but  a  disposition  of  the  heritable  subject  or  the  personal  estate  to  some  person  capable 
of  taking.  Notwithstanding  all  words  of  anger  and  personal  dislike  applied  to  the 
heir,  he  will  take  what  is  not  disposed  of.  It  is  impossible  to  make  a  different  rule  as 
to  the  personal  estate  with  regard  to  what  is  not  disposed  of." 

■■^  Therefore  the  three  farms  in  Carter  v.  Haswell,  26  L.  J.,  Chan.  576,  belonged 
absolutely  to  the  testator's  sister,  and  hence  there  was  no  authority  to  sell  them. 

3  It  seems,  therefore,  that  the  trust  for  selling  the  land  was  invalid  and  inoperative 
in  Iti  re  Gordon,  6  Ch.  D.  531. 

In  Cook  V.  Duckenfield,  2  Atk.  566.  Lord  Hardwicke  said  (p.  56S) :  "  If  a  testator 
says,  '  I  will  my  heir  shall  sell  the  land,'  and  does  not  mention  for  what  purpose,  it  is 
in  the  breast  of  the  heir  at  law  whether  he  will  sell  it  or  no,  but  when  the  testator 
appoints  an  executor  to  sell,  his  office  shows  that  it  is  intended  to  be  turned  into 
personal  assets,  without  leaving  any  resulting  trust  in  the  heir."  It  will  be  seen, 
therefore,  that  Lord  Hardwicke  admits  that  the  direction  to  sell  will  be  invalid  if 
a  consequence  of  a  sale  will  be  that  the  proceeds  of  the  sale  will  belong  to  the 
heir.  He  is  of  opinion,  however,  in  accordance  with  the  notions  which  then  pre- 
vailed, that  the  question  whether  such  proceeds  did  belong  to  the  heir,  or  went  to 
the  executor  as  a  part  of  the  testator's  personal  assets,  depended  upon  the  testator's 
intention,  and  accordingly  he  was  of  opinion  that  the  fact  of  the  testator's  directing 
his  executor  to  make  the  sale  showed  the  latter  to  be  his  intention.  This  opinion, 
however,  as  to  the  efficacy  of  the  testator's  intention  is  clearly  no  longer  law.  It  im- 
plies that  a  testator  may  give  to  the  sale  of  his  land,  made  after  his  death,  the  same 
effect  that  a  sale  by  him  in  his  lifetime  would  have  had. 

In  Chitty  v.  Parker,  2  Ves.  Jr.  271,  a  testator  devised  her  land  and  personal  estate 
to  be  converted  into  money,  but  made  no  gift  except  of  pecuniary  legacies,  and  all  these 
were  paid  out  of  the  personal  estate,  out  of  which  they  were  primarily  payable,  and 
hence  the  land  was  not  sold,  and  the  court  held  that  the  land  went  to  the  heir  as  land. 
There  was  clearly  no  right  in  any  one  to  have  it  sold.  The  bill  was  filed  by  the  next  of 
kin  against  the  heir  and  was  dismissed.     The  case  of  Maugham  v.  Mason,  i  Ves.  &  B. 


28o        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

confer  a  mere  power  to  sell  his  land,  his  act  will  be  a  nullity,  and 
any  sale  which  may  be  made  under  it  will  confer  no  title  upon  the 
purchaser.  If,  on  the  other  hand,  the  testator  devise  the  land  to  a 
trustee  in  trust  to  sell  it,  though  the  devise  will  be  valid,  and  will 
vest  the  legal  title  to  the  land  in  the  trustee,  yet  the  trust  sought 
to  be  created  will  be  void,  and  the  trustee  will  become,  from  the 
moment  of  the  testator's  death,  a  mere  depositary  of  the  legal  title, 
which  he  will  hold  for  the  benefit  of  the  heir,  whose  servant  he 
will  be.  He  will  have  no  power  or  authority  over  the  land  in 
equity,  and  the  only  obligation  resting  upon  him  will  be  to  convey 
the  legal  title  as  the  heir  shall  direct.  The  heir  will  not  even  have 
the  option  of  calling  upon  the  trustee  to  make  a  sale  of  the  land 
according  to  the  testator's  direction.  In  short,  the  relation  between 
the  heir  and  the  trustee  will  be  the  same  as  that  which  was  created 
by  the  ancient  use  between  the  cestui  qui  use  and  the  feoffee  to 
uses.  Such  is  always  and  necessarily  the  relation  which  exists 
between  a  trustee  and  a  cestui  qui  trust  who  is  in  equity  the 
absolute  owner  of  the  trust  property,  and  sni  Juris. 

There  is  also  another  reason  why  a  direction  by  a  testator  to  sell 
land  is  not  valid  unless  he  also  make  some  disposition  of  the 
proceeds  of  the  sale,  or  of  some  part  thereof,  or  direct  some  charge 
on  the  land  to  be  satisfied  out  of  such  proceeds,  namely,  that  a 
direction  is,  in  its  nature,  invalid  unless  it  can  be  enforced,  and 
such  a  direction  as  that  under  consideration  cannot  be  enforced 
unless  the  testator  create  in  some  other  person  a  "right"  which 
will  entitle  him  to  enforce  the  direction,  and  the  only  way  in  which 
a  testator  can  create  such  a  right  is  by  making  a  gift  to  some  one 
of  some  portion  of  the  proceeds  of  the  sale  directed,  or  of  some 
interest  therein,  or  by  directing  some  charge  upon  the  land,  either 
created  by  the  will  or  already  existing,  to  be  satisfied  out  of  such 
proceeds.^ 

410,  where  the  bill  was  also  dismissed,  was  substantially  like  Chitty  v.  Parker,  except 
that  the  bill  against  the  heir  was  filed  by  a  residuary  legatee  instead  of  the  next  of  kin. 
The  case  of  the  next  of  kin  would,  however,  have  been  even  more  hopeless.  See  next 
note. 

1  Strange  as  it  may  seem,  the  principle  stated  in  the  text  finds  little  formal  recogni- 
tion in  the  authorities.  An  idea  seems  to  prevail  extensively  that  a  trust  created  by  will, 
whether  for  the  sale  of  land  or  for  any  other  purpose,  depends,  for  its  validity,  upon 
nothing  but  the  testator's  intention,  provided  that  intention  be  lawful.  It  seems  to  be 
forgotten  that  there  can  be  no  trust  and  no  trustee  without  a  cestui  que  trust,  and  that 
the  sole  test  of  the  validity  of  a  trust  is  an  ability  in  some  person  to  enforce  it.  Thus, 
in  Attorney-General  v.  Lomas,  L.  R.  9  Exch.  29,  it  was  held  that  a  testamentary  trust 
for  the  sale  of  land  was  valid  and  binding,  though  all  the  gifts  of  the  proceeds  of  the 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        28 1 

For  similar  reasons  to  those  just  stated,  a  direction  by  a  testator 
to  sell  his  land,  or  to  purchase  land  with  his  money,  will  not  be 
valid  if  it  be  accompanied  by  an  absolute  gift  of  all  the  proceeds 
of  the  sale,  or  of  all  the  land  to  be  purchased,  to  a  single  person 
who  is  sui  juris,  for  an  absolute  gift  of  all  the  proceeds  of  a  sale 
of  land  is  also  a  gift  of  the  land  itself,^  and  an  absolute  gift  of  all 
the  land  to  be  purchased  with  certain  money  is  also  a  gift  of  the 
money  itself,  and  hence  the  legatee,  in  the  one  case,  becomes  the 
absolute  owner  both  of  the  land  and  the  proceeds  of  its  sale,  and 
the  devisee,  in  the  other  case,  becomes  the  absolute  owner  both  of 
the  money  and  the  land  to  be  purchased  with  it,  and  it  is  therefore 
solely  for  the  one  to  say  whether  the  land  shall  be  sold,  and  for  the 
other  to  say  whether  land  shall  be  purchased  with  the  money. 

So  also  a  direction  to  sell  or  purchase  land,  though  originally 
valid  and  binding,  will  cease  to  be  so  whenever  a  single  person 
who  is  sui  Juris  shall  become  absolutely  entitled  to  all  the  proceeds 
of  the  sale  or  to  all  the  land  to  be  purchased. 

So  also  if  at  any  time  several  persons,  all  of  whom  are  stti  Juris, 
become  absolutely  entitled  to  all  the  produce  of  land  directed  by  a 
testator  to  be  sold,  or  to  all  the  land  directed  by  him  to  be  pur- 
chased, they  can  make  the  direction  inoperative  by  uniting  in 
giving  notice  to  the  person  directed  to  make  the  sale  or  purchase 
not  to  do  so. 

If  a  testator  who  directs  a  sale  or  purchase  of  land  also  disposes 
of  a  part  of  the  proceeds  of  the  sale,  or  of  a  part  of  the  land  to  be 
purchased,  or  directs  a  charge  on  the  land  to  be  satisfied  out  of 
the  proceeds  of  the  sale,  the  direction  to  sell  or  purchase  will  be 
valid,  as  it  will  then  be  merely  an  incident  of  the  gift  by  which  it 
is  followed.  So  also  it  will  be  valid  if  it  be  followed  by  a  gift  of 
a  limited  interest  only  in  a  part  or  in  the  whole  of  the  proceeds  of 
the  sale  or  of  the  land  to  be  purchased.  So  it  will  if  followed  by 
an  absolute  gift  of  all  the  proceeds  of  the  sale,  or  of  all  the  land  to 
be  purchased,  subject  to  the  qualifications  stated  in  the  two  pre- 
ceding paragraphs. 

sale  had  failed.     The  gifts  in  the  will  which  eventually  took  effect  consisted  only  of 
specific  and  pecuniary  legacies.     It  is  true  that  the  pecuniary  legacies  were  charged  on 
the  land,  including  three  contingent  legacies,  namely,  one  for  £2>°°°  ^"<^  '^°  ^°^  ;^icxx) 
each,  but  it  must  be  assumed  that  they  had  all  been  paid.     See  preceding  note. 
1  In  re  Daveron,  [1893]  3  Chan.  421,  424. 


ARTICLE    XI  V 


Equitable  Conversion. 

II. 

CARE  should  be  taken  to  distinguish  accurately  between  the  two 
purposes  for  which  a  testator  may  direct  a  sale  of  his  land, 
namely,  that  of  disposing  by  the  will  of  the  proceeds  of  the  sale,  or 
of  some  part  thereof,  or  of  some  interest  therein,  and  that  of  satisfy- 
ing a  lien  or  charge  on  the  same  land,  particularly  when  such  lien  or 
charge  is  created  by  the  same  will  which  directs  the  sale.  Between 
these  two  purposes  there  is  the  same  distinction  as  between  being 
the  owner  of  property  and  being  a  creditor  of  such  owner.  A  lien 
or  charge  is  in  its  nature  a  real  obligation,^  and  it  is  so  called 
because  it  binds  a  thing  (^res')  in  the  same  rhanner  as  a  personal 
obligation  binds  a  person.  The  word  "  lien  "  has,  indeed,  the  same 
meaning  and  the  same  origin  as  the  word  "  obligation,"  though 
it  is  commonly  used  only  to  designate  an  obligation  which  is  real. 
A  personal  obligation,  while  it  imposes  a  burden  on  one  person, 
confers  upon  another  person  a  correlative  right  to  have  that  burden 
carried.  The  burden  which  an  obligation  imposes  is  called  a  debt  ^ 
(debitwm),  the  person  upon  whom  the  burden  is  imposed  is  called 
a  debtor  (^debitor'),  and  is  said  to  owe  the  debt,  while  the  person 

1  i8  Harv.  L.  Rev.  83. 

2  As  to  real  obligations,  see  13  Harv,  L.  Rev.  539. 

8  The  reader  will  perceive  that  the  term  "  debt"  is  here  used  in  its  broad  Roman 
sense,  not  in  its  technical  and  narrow  English  sense. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        283 

upon  whom  the  correlative  right  is  conferred  is  called  a  creditor, 
and  to  him  the  debt  is  owed.  Whenever,  therefore,  there  is  a  debt 
of  any  given  amount,  there  must  always  be  a  creditor  as  well  as  a 
debtor,  and  each  for  the  same  amount  as  the  debt,  and  whenever 
either  of  the  three  ceases  to  exist,  the  other  two  cease  to  exist 
also.  Moreover,  what  is  thus  true  of  a  personal  obligation  is  also 
true  of  a  real  obligation,  except  that  in  a  real  obligation  the  burden 
is  imposed  upon  a  thing.  Accordingly,  wherever  there  is  a  charge 
on  land,  there  must  necessarily  be  a  person  to  whom  the  amount 
of  the  charge  is  owed,  as  well  as  land  which  owes  it. 

A  real  obligation  is  either  legal  or  equitable.  When  it  is 
legal,  it  binds  the  property  even  in  the  hands  of  a  purchaser  for 
value  and  without  notice;  when  it  is  equitable  only,  it  ceases 
to  bind  the  property  the  moment  the  latter  comes  into  the  hands 
of  a  person  who  pays  value  for  it,  and  who  is  not  chargeable 
with  notice  that  it  is  subject  to  an  obligation.  A  rent-charge 
is  an  instance  of  a  real  obligation  which  is  legal.  A  lien  or 
charge  on  land  created  by  will  is,  however,  equitable  only,  unless 
some  legal  estate  or  interest  be  devised  to  secure  its  payment. 

Where  a  testator,  instead  of  imposing  a  lien  or  charge  on  the 
land  which  he  directs  to  be  sold,  bequeaths  to  some  person  a 
portion  of  the  proceeds  of  the  sale,  the  rights  of  the  legatee  will 
be  those  of  a  co-owner,  not  those  of  a  creditor,  —  i.  e.,  they  will 
be  absolute  rights,  not  relative  rights.^  The  rights  of  an 
owner  of  property  are  in  some  respects  superior  to  those  of 
a  creditor  of  the  same  property,  while  in  other  respects  they 
are  inferior.  For  example,  if  the  property  increases  in  value 
the  owner  v/ill  enjoy  all  the  benefit  of  the  increase,  while  if 
it  decreases  in  value  all  the  burden  of  the  decrease  will  fall  upon 
him,  a  creditor,  whose  debt  is  a  charge  on  the  property,  having 
no  interest  either  in  its  increase  or  decrease  in  value  so  long 
as  it  is  sufficient  to  pay  his  debt.  So  long  as  the  payment  of 
the  debt  is  sure,  the  value  of  the  creditor's  rights  is  fixed  and 
invariable,  while  the  value  of  the  owner's  rights  constantly 
fluctuates  with  the  fortunes  of  the  property.  Hence,  if  a  testator 
wishes  to  create  a  charge  on  his  land,  he  must  fix  the  amount 
of  it,^  —  which  he  generally  does  by  naming  its  amount  in  lawful 

1  For  the  distinction  between  absolute  rights  and  relative  rights,  as  those  terms  are 
here  used,  see  13  Harv.  L.  Rev.  537,  546,  n.  i. 

2  The  amount  of  the  charge  need  not,  however,  appear  on  the  face  of  the  will ;  it  is 
sufficient  if  the  will  furnish  the  means  of  ascertaining  its  amount.     Thus,  in  Cook  v. 


284        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

money, — while  if  he  wishes  to  give  a  portion  of  the  produce  of 
the  land  which  he  directs  to  be  sold  he  must  designate  such 
portion  as  some  fractional  part  of  the  whole.  If,  therefore,  a 
testator  direct  his  executors  to  sell  his  land  and  pay  one  tenth 
of  its  total  produce  to  A,  A  will  be  co-owner  of  such  produce, 
and  it  is  impossible  that  he  should  be  anything  else,  while  if 
the  direction  to  the  executors  be  to  pay  A  $1000  out  of  the 
produce  of  the  land,  the  $1000  will  constitute  a  charge  on  the 
land,  and  A  will  be  a  creditor  of  the  land  for  that  amount,  and 
it  is  impossible  that  he  should  be  anything  else.^  It  will  be  seen, 
therefore,  that  a  pecuniary  legacy  is  always  and  necessarily  a 
charge,  and  so  the  legatee  is  in  the  nature  of  a  creditor,  though 
of  course  he  ranks  behind  the  testator's  own  creditors.  If  a 
pecuniary  legacy  be  given,  without  any  indication  of  the  fund 
out  of  which  it  shall  be  paid,  it  will  constitute  a  charge  on  the 
testator's  entire  personal  estate,  out  of  which  alone  it  will  be 
payable.  If  the  testator  declare  that  the  legacy  shall  be  paid  out 
of  the  produce  of  his  land,  it  w'ill  then  constitute  an  equitable 
charge  on  the  land,  either  in  aid  of  the  personal  estate,  or  pro  rata 
with  it,  or  exclusive  of  it,  according  to  circumstances. 

If  a  testator  give  to  A  one  tenth  of  the  produce  of  land  which 
he  directs  to  be  sold,  such  one  tenth  exists  independently  of  the 
testator,  and  of  course  independently  of  the  gift  which  he  makes 
of  it,  i.  e.,  it  exists  in  the  form  of  land  until  the  land  is  sold,  and 
then  in  the  form  of  produce  of  the  land.  Any  failure,  therefore, 
of  the  gift  to  A,  whether  because  of  his  death  during  the  testator's 
life,  or  for  any  other  reason,  will  have  no  other  effect  upon  the 

Stationer's  Co.,  3  M.  &  K.  262,  a  testator  devised  his  land  to  his  executors  in  trust  to 
sell  enough,  with  the  aid  of  his  personal  estate,  to  purchase  ;i^io,70o  of  3  per  cent 
consols.  The  amount  of  the  charge,  therefore,  would  depend  upon  the  price  of  consols 
when  the  purchase  was  made.     This  case  is  also  cited,  iufm,  p.  290. 

1  In  Page  v.  Leapingwell,  18  Ves.  463,  a  testator  devised  land  to  trustees  in  trust  to 
sell  the  same,  but  not  for  less  than  ;,(^io,ooo,  and  out  of  the  proceeds  to  pay  four 
legacies,  amounting  in  all  to  ;^78oo,  and  to  pay  the  residue  to  A ;  and  the  land  having 
been  sold  for  less  than  ;£'io,ooo,  Sir  W.  Grant,  M.  R.,  held  that  each  of  the  five 
legacies  must  be  deemed  specific,  i.  e.,  a  fractional  part  of  the  ;^io,ooo,  and  therefore 
all  must  abate  ratably.  It  seems,  however,  very  difficult  to  sustain  this  view.  i.  It 
is  not  obvious  what  authority  there  was  to  sell  the  land  for  less  than  ;^io,ooo  without 
the  consent  of  all  parties  in  interest.  2.  If  the  land  had  been  sold  for  more  than 
;if  10,000,  it  seems  clear  that  A  would  have  been  entitled  to  all  that  remained  after 
deducting  ;^78oo.  3.  The  testator  says,  in  the  most  explicit  terms,  that  the  four 
legatees  are  to  receive  in  the  aggregate  ^7800,  and  there  is  nothing  in  the  will  to 
raise  a  doubt  that  the  testator  meant  what  he  said.  He  does  not  intimate  what 
amount  A  will  receive. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        285 

one  tenth  intended  for  A  than  to  cause  it  to  remain  with  the 
testator's  heir,  instead  of  being  taken  from  him  for  the  benefit 
of  A.  So,  if  the  testator  give  to  A,  or  to  A,  B,  and  C  successively, 
Hmited  interests  in  the  whole  of  the  produce  of  the  land  which  he 
directs  to  be  sold,  and  make  no  further  disposition  of  such  produce, 
the  consequence  will  be  that  the  reversionary  interest  therein, 
expectant  on  the  termination  of  the  interest  of  A,  or  of  A,  B,  and 
C,  will  be  undisposed  of  by  the  testator  and  so  will  remain  with  his 
heir.  But  if,  on  the  other  hand,  a  testator  give  to  A  $1000  out 
of  the  produce  of  the  land  which  he  directs  to  be  sold,  the  $1000 
will  be  purely  the  testator's  own  creation,  and  therefore  it  will 
have  no  existence  until  the  testator's  death,  and  it  will  not  come 
into  existence  even  on  the  death  of  the  testator,  unless  it  then 
vests  in  A.  If,  therefore,  A  die  before  the  testator,  or  even  before 
the  right  to  receive  the  $1000  vests  in  him,  such  right  will  never 
come  into  existence,  and  the  land  will  devolve  as  if  no  such  gift 
had  been  made  by  the  testator.  So,  if  the  testator  give  to  A,  or 
to  A,  B,  and  C  successively,  a  life  interest  in  $1000,  and  make  no 
disposition  of  the  ultimate  interest,  the  consequence  will  be  that 
the  $1000  will  cease  to  exist  as  a  separate  interest  on  the  death 
of  A,  or  of  A,  B,  and  C,  and  that,  too,  whether  it  had  been  actually 
raised  or  whether  it  still  remain  a  charge  on  the  land,  the  interest 
only  having  been  raised  and  paid.  If  the  $1000  have  been  raised, 
it  will  belong,  on  the  expiration  of  the  life  interest  or  interests,  to 
the  owner  of  the  land  at  whose  expense  it  has  been  raised,  though, 
of  course,  it  will  be  money  in  his  hands  ;  if  it  have  not  been  raised, 
it  will  sink  into  the  land  for  the  benefit  of  its  owner,  i.  e.,  it  will 
cease  to  be  a  charge  on  the  land. 

In  short,  in  the  case  of  a  testamentary  charge  on  land,  any  fail- 
ure of  the  testator  to  make  a  complete  and  effective  gift  of  the 
entire  sum  charged  will  also  cause  a  failure  to  the  same  extent  of 
the  charge  itself;  and  the  fact  that  the  money  charged  has  been 
actually  raised,  if  such  be  the  fact,  will  have  no  other  effect  upon 
so  much  of  it,  or  of  such  interest  in  it,  as  is  not  disposed  of,  than 
to  convert  the  land  to  that  extent  into  money,  leaving  the  owner- 
ship of  the  money,  however,  where  the  ownership  of  the  land  would 
have  been  if  the  money  had  not  been  raised.  It  may  be  added 
that  a  direction  by  a  testator  that  a  sum  of  money  charged  by 
him  on  his  land  be  paid  to  his  executor  as  such  is  not  a  valid  dis- 
position of  the  money  charged,  and  hence  it  does  not  make  the 
charge  valid.     A  gift  to  one's  own  executor  as  such  is,  indeed,  no 


286        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

more  than  a  gift  to  oneself,  and  therefore  amounts  only  to  an 
illegal  and  invalid  attempt  to  cause  one's  land,  to  the  extent  of 
the  gift,  to  devolve  as  if  it  were  personal  estate.^ 

The  reader  must  not  infer  from  what  has  been  said  that  a  debt, 
in  order  to  be  the  subject  of  a  testamentary  charge,  must  be 
created  by  the  will  which  creates  the  charge,  nor  even  that  it  must 
be  in  existence  when  the  will  is  made,  for  it  is,  in  fact,  not  material 
how  or  when  the  debt  is  created,  it  being  sufficient  that  it  is  in 
existence  when  the  testator  dies.  Nothing,  indeed,  was  formerly 
more  common  in  England  than  for  a  testator,  by  his  will,  to 
charge  his  land  with  the  payment  of  all  his  debts,  the  reason  being 
that  simple  contract  debts  of  a  deceased  person  were  formerly  not 
payable  by  law  out  of  his  land,  and  hence  must  go  unpaid,  in  case 
his  personal  estate  was  insufficient  to  pay  them,  unless  he  made 
provision  by  his  will  for  their  payment  out  of  his  land.  For  simi- 
lar reasons,  it  is  very  common  for  a  testator  to  charge  his  land 
generally  with  the  payment  of  all  his  pecuniary  legacies,  such  leg- 
acies being  otherwise  payable  out  of  his  personal  estate  alone. 

Plain  as  the  foregoing  distinctions  seem  to  be,  they  have  not 
always  been  recognized  or  acted  upon  by  the  courts. 

Thus,  in  Cruse  v.  Barley ,2  the  testator  directed  the  residue  of 
the  proceeds  of  a  sale  of  his  land,  with  the  residue  of  his  personal 
estate,  to  be  divided  among  his  five  children,  the  eldest  son  to  re- 
ceive ;^200  at  twenty-one,  and  the  remainder  to  be  divided  equally 
among  the  other  four;  and  the  eldest  son  having  died  under 
twenty-one,  the  court  held  that  the  ;i^200,  so  far  as  it  consisted  of 
the  produce  of  the  land,  went  to  the  only  surviving  son  and  heir. 
It  is  clear,  however,  that  the  ;^200  constituted  a  charge  on  the 
entire  residue,  and  hence  must  have  been  paid  in  full,  though  the 
other  four  children  had  received  nothing,  and  the  eldest  son  could 
not  be  a  creditor  of  the  estate  for  ;^200  and,  at  the  same  time,  a 
part  owner  of  it  in  respect  to  the  same  ^200. 

So  in  Emblyn  v.  Freeman,^  where  land  was  conveyed  by  deed  in 
trust  to  sell  the  same  after  the  grantor's  death,  and  divide  the  sur- 
plus proceeds  equally  among  persons  named,  after  deducting  .^200 
—  which,  however,  was  not  disposed  of,  the  court  held  that  the 
;^200  went  to  the  grantor's  heir.     It  seems  clear,  however,  that,  as 


1  Arnold  z'.  Chapman,  1  Ves.  108;  Henchman  z/.  Attorney-General,  2  Sim.  &  S.  498, 
3  M.  &  K.  485. 

2  3  P.  Wms.  20. 
8  Ch.  Prec.  541- 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         287 

no  disposition  was  made  of  the  ;i^200,  there  was  no  authority  to 
deduct  it  for  any  purpose. 

In  Arnold  v.  Ciiapman,^  where  the  testator  in  terms  charged 
his  land  with  the  sum  of  £\0(X),  but  made  no  valid  disposition 
thereof,  the  court  held  that  the  ;^iOOO  went  to  the  testator's  heir; 
and  yet  it  seems  certain,  first,  that  no  debt  was  created,  inasmuch 
as  there  was  no  creditor,  and  secondly,  if  a  debt  was  created,  that 
it  could  not  devolve  by  operation  of  law,  nor  otherwise  than  as 
directed  by  the  will.  In  other  words,  it  could  not  devolve  upon 
the  heir.  In  Henchman  v.  Attorney-General,^  which  was  like 
Arnold  V.  Chapman,  except  that  the  testator  left  no  heir,  the  court 
(which  seems  to  have  been  much  embarrassed  by  the  decision  in 
Arnold  v.  Chapman)  was  compelled  to  hold  that  the  charge  sank 
for  the  benefit  of  the  devisee  of  the  land. 

In  Hutcheson  v.  Hammond  ^  it  was  held  that  the  amount  of 
a  lapsed  pecuniary  legacy  of  ;^iOOO,  payable  out  of  the  proceeds 
of  a  sale  of  land  directed  by  the  testator,  went  to  the  heir,  although 
the  will  contained  an  express  bequest  of  the  residue  of  such 
proceeds. 

In  Hewitt  v.  Wright,*  land  was  conveyed  by  deed  to  trustees, 
charged  with  ;i^i500,  which  the  trustees  were  to  raise,  on  the  death 
of  the  grantor  and  his  wife,  and  invest  and  pay  the  interest,  in  the 
events  which  happened,  to  the  grantor's  daughter,  D.,  for  her  life, 
and  no  further  disposition  was  made  of  the  i^i 500,  —  which  was 
raised,  invested,  and  the  interest  paid  as  directed ;  and  it  was  held 
that  on  the  death  of  D.  the  personal  representative  of  the  grantor 
was  entitled  to  the  ^^"1500.  This  was  equivalent  to  holding  that 
the  grantor,  immediately  on  the  delivery  of  the  deed,  acquired  a 
right,  on  the  death  of  the  survivor  of  himself  and  wife,  to  have  the 
^^1500  raised  for  his  own  benefit,  subject  only  to  the  right  therein 
of  D.  In  truth,  however,  D.  was  the  only  person  who  ever  had 
such  a  right,  and  it  was  only  to  the  extent  of  her  right  that  the 
^^1500  was  ever  a  burden  on  the  land.  Hence,  if  D.  had  died 
before  the  money  was  raised,  the  land  would  have  been  wholly 
discharged  from  the  burden.  Having  been  raised,  therefore,  the 
money  belonged  to  the  owner  of  the  land,  subject  to  D.'s  rights 
therein,  and  on  the  death  of  D.  it  went  back  to  the  land,  /.  e.,  to  its 
owner. 

1  I  Ves.  108.  2  2  Sim.  &  S.  498,  3  M.  &  K.  485. 

8  3  Bro.  C.  C.  128.     See  this  case  infra^  p.  291. 
*  I  Bro.  C.  C.  86. 


288        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

In  Collins  v.  Wakeman,^  where  a  testator  charged  his  land 
with  ;^I000,  of  which  he  made  no  disposition,  it  was  held  that  the 
heir  was  entitled  to  the  i^iooo,  the  court  assuming  that  there  was 
no  difference,  in  respect  to  the  claim  of  the  heir,  between  such  a 
gift  and  a  gift  of  one  tenth  (for  example)  of  the  produce  of  the 
land  directed  by  the  testator  to  be  sold. 

In  Jones  v.  Mitchell,^  where  a  legacy  of  i^8oo,  payable  out  of 
the  proceeds  of  a  sale  of  land  directed  by  the  testator,  was  given 
to  trustees  for  charities,  and  the  gift  was  therefore  void,  its  nullity 
was  held  to  inure  to  the  benefit  of  the  testator's  heir,  notwithstand- 
ing that  the  will  contained  an  express  bequest  of  the  residue  of 
such  proceeds. 

In  Amphlett  v.  Parke,  it  was  held  by  Lord  Brougham,^  re- 
versing the  decree  of  Sir  J.  Leach,  V.  C,*  that  the  amount  of  cer- 
tain lapsed  pecuniary  legacies,  payable  out  of  the  proceeds  of  a 
sale  of  land  directed  by  the  testator,  went  to  the  testator's  heir, 
notwithstanding  that  the  will  contained  an  express  bequest  of  the 
residue  of  such  proceeds. 

In  Watson  v.  Hayes,^  where  a  testator  devised  land  in  trust 
to  be  sold,  and  the  proceeds  divided  among  his  five  children,  after 
reserving  a  sum,  the  interest  of  which  would  pay  an  annuity  of 
;^400  to  his  wife  for  her  life,  and  the  wife  died  before  the  land  was 
sold,  the  court  held  that  the  sum  which  should  have  been  reserved 
went  to  the  heir.  It  seems  clear,  however,  that  the  testator  in- 
tended to  give  the  land  to  his  five  children,  subject  only  to  a 
charge  of  the  annuity.  If,  therefore,  the  land  had  been  sold, 
and  a  sum  reserved  as  directed,  such  sum  would  have  belonged 
to  the  children,  though  the  wife  would  have  been  entitled  to 
have  it  held  by  the  trustees  during  her  life  to  secure  the  payment 
of  her  annuity.  The  land  not  having  been  sold,  and  the  annuity 
having  expired,  the  case  in  favor  of  the  five  children  was  still 
stronger.  Even  if  it  should  be  held  that  the  gift  to  the  five 
children  did  not  include  the  sum  to  be  reserved,  it  is  not  obvious 
what  authority  the  trustees  would  have  had  to  reserve  any  sum  out 
of  the  proceeds  of  a  sale,  except  to  secure  the  payment  of  the 
annuity. 

In  Burley  v.  Evelyn,^  where  a  testator  gave  ^5000,  out  of  the 

1  2  Ves.  Jr.  6S3. 

2  I  Sim.  &  S.  290.     See  this  case  infra,  p.  291. 

8  2  R.  &  M.  221.     See  this  case  infra,  p.  292.  *  i  Sim.  275. 

6  5  M.  &  Cr.  125.  ^  16  Sim.  290. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        289 

proceeds  of  land  directed  by  him  to  be  sold,  to  A  for  life,  with 
remainders  void  for  remoteness,  and  gave  the  residue  of  such  prod- 
uce to  B,  it  was  held  that  the  void  remainders  went  to  the  heir, 
though  the  truth  seems  to  have  been  that,  on  the  land's  being  sold, 
the  entire  proceeds  of  the  sale  vested  in  B,  subject  to  a  charge 
thereon  of  ;^5000,  in  favor  of  A,  for  his  life. 

In  Croft  V.  Slee,^  a  testator   gave    the  Swan  Inn    to   his  heir, 
charged  with  i^soo  in  favor  of  the  testator's  wife,  who  however 
died  before  her  interest,  which  was  only  for  her  life,  had  vested; 
but,  she    being  also  residuary  legatee,  her   executor    filed  a  bill 
against  the  heir  to  have  the  ^^500  raised  and  paid  as  part  of  the 
testator's  personal  estate,  and,  though  the  bill  was  properly  dis- 
missed, yet  Sir  R.  P.  Arden,  M.  R.,  said  that,  If  the  wife  had  died 
after  her  interest  had  vested,  and  the  ;C500  had  been  raised  and 
invested,  it  would  have  become,  on  the  wife's  death,  a  part  of  the 
testator's  personal  estate,  and  the  wife's  executor  would  have  been 
entitled  to  it  as  such.     Moreover,  Simmons  v.  Pitt,^  which  does  not 
differ  substantially  in  its  facts  from  Croft  v.  Slee,  contradicts  even 
the  decision  in  the  latter ;   for  in  both  cases  aUke  a  sum  of  money 
charged  on  land  had  not  been  raised,  and  in  both  the  question  was 
whether  a  sum  of  money,  in  respect  of  which  the  charge  had  failed, 
should  be  raised,  and  in  Simmons  v.  Pitt  it  was  held  that  it  should. 
For  what  purpose?    In  order  that  it  might  be  paid  to  the  personal 
representative    of  him    who    created   the    charge    and    who    died 
intestate.    The  fact  that   the    charge  was    created  by  virtue  of  a 
power  was  not  material,  for  the  power  itself  was  created  by  the 
person  who    exercised  it.      The  settlor  in  a  marriage  settlement 
reserved  the  power  to  himself,  and  therefore  it  was  just  the  same 
as  if  he  had  created  the  charge  directly  in  the  marriage  settlement, 
instead  of  doing  it  indirectly.     So  far,  therefore,  as  the  gift  of  the 
money  charged  on  the  land  was  incomplete  or  invalid,,  the  charge 
failed,  and  the  failure  inured  to  the  benefit  of  the  owner  of  the  land, 
namely,  the  heir  of  him  who  created  the  charge.     As  has  already  ^ 
been  seen,  a  charge  on  land  is  never  of  any  efficacy,  except  so  far 
as  there  is  an  eff"ective  and  valid  gift  of  the  money  charged.     To 
say  otherwise  would  be  to  say  there  can  be  an  obligation  and  an 
obligor  without  an  obligee. 

On  the  other  hand,  in  Wright  v.  Row,*  it  was  held  that  an  an- 
nuity charged  on  land  in  favor  of  a  charity,  and  consequently  void, 

1  4  Ves.6o.  ^  L.  R.,  8Ch.  978. 

8  Sujira,  p.  285.  *  I  Bro.  C.  C.  61. 

19 


290        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

sank  for  the  benefit  of  the  devisee  of  the  land.  Barrington  v. 
Hereford,^  Jackson  v.  Hurlock,^  Baker  v.  Hall,^  SutcHffe  v.  Cole,* 
Tucker  v.  Kayess,^  and  Heptinstall  v.  Gott  ^  are  also  to  the  same 
effect. 

So  in  Cook  v.  Stationer's  Co./  where  a  testator  devised  his  land 
in  trust  to  sell  enough,  with  the  aid  of  his  personal  estate,  to  pur- 
chase ;^io,700  of  3  per  cent  consols,  his  gift  of  ^^3300  of  which, 
being  to  charities,  was  void,  and  the  testator  gave  all  the  residue 
of  his  property  to  his  wife,  it  was  properly  held  that  the  gift  to  the 
charities  sank  for  the  wife's  benefit,  though  son:e  of  the  reason- 
ing of  Sir  J.  Leach,  M.  R.,  is  not  very  satisfactory  nor  very 
intelligible. 

In  Salt  V.  Chattaway,^  it  was  properly  held  that,  while  a  lapsed 
share  of  the  testator's  residuary  estate,  so  far  as  it  consisted 
of  the  produce  of  his  real  estate,  went  to  the  heir,  the  lapse  of  a 
pecuniary  legacy  inured  to  the  benefit  of  the  residuary  legatee. 

In  In  re  Cooper's  Trusts,^  where  a  testator  devised  land,  sub- 
ject to  a  charge  of  ;^iooo  in  favor  of  his  daughter  E.  for  life,  and 
died  in  1816,  and  the  ^1000  was  raised  in  1840,  and  the  daughter 
died  in  1844,  it  was  properly  held  that  the  ^1000,  when  raised, 
belonged  to  the  then  owner  of  the  land,  subject  to  E.'s  life  interest 
therein,  but  that  it  devolved  henceforth  as  money. 

In  In  re  Newberry's  Trusts,^*^  where  land  was  charged  by  will 
in  1829  with  the  sum  of  £\ooo  in  favor,  in  the  events  which 
happened,  of  the  testator's  daughter  for  life,  and  then  of  the 
daughter's  husband  for  life,  and  the  testator  died  in  1833,  and  the 
money  was  then  raised,  and  the  daughter  lived  till  1868,  and  her 
husband  till  1869,  it  was  held  that  the  £\0(X>  from  the  time  when 
it  was  raised  belonged  to  the  owner  of  the  land,  subject  to  the  life 
interests  of  the  daughter  and  her  husband,  but  that  it  was  money 
in  his  hands,  and  hence,  on  his  death  in  1865,  the  money  devolved 
on  his  personal  representative.^^ 

Sometimes  a  testator  who  directs  a  sale  of  land  combines  the 
two  objects  before  mentioned,  i.  e.,  first  directs  a  fixed  amount  to 

I  Cited  I  Bro.  C.  C.  61.  2  2  Eden  263,  Ambl.  487. 
8  12  Ves.  497.  4  3  Dr.  135. 

6  4  K.  &  J.  339.  «  2  J.  &  H.  449- 

'  3  M.  &  K.  262.    This  case  is  also  cited  supra,  p.  283,  n.  2. 
8  3  Beav.  576. 
«  4  De  G.,  M.  &  G.  757. 
10  5  Ch.  D.  746. 

II  See  also  Heptinstall  v.  Gott,  2  J.  &  H.  449. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        291 

be  paid  out  of  the  proceeds  of  the  sale  in  the  form  of  pecuniary 
legacies  or  otherwise,  and  then  gives  the  residue  of  such  proceeds 
to  some  other  person  or  persons,  and  in  such  cases,  if  any  part  of 
such  fixed  amount  fails,  by  lapse  or  otherwise,  the  failure  inures  to 
the  benefit  of  the  person  or  persons  to  whom  the  residue  of  the 
proceeds  of  the  sale  is  given,  just  as  it  would  inure  to  the  benefit 
of  the  testator's  heir  or  devisee  if  such  a  residue  had  not  been 
disposed  of.  This  principle  ought  to  have  been  applied  in  the 
case  of  Kennell  v.  Abbott,^  where  the  testator  gave  the  residue  of 
the  proceeds  of  a  sale  of  land  directed  by  him  to  his  niece,  B.  K., 
whom  he  also  made  his  general  residuary  legatee ;  but  the  court 
held  instead  that  the  latter  took  such  residue  as  general  residuary 
legatee. 

In  Hutcheson  v.  Hammond  ^  a  lapse  of  a  pecuniary  legacy  was 
held  to  inure  to  the  benefit,  neither  of  the  person  to  whom  the 
residue  of  the  proceeds  of  the  sale  was  given,  nor  to  the  residuary 
legatee,  but  to  the  heir. 

So  in  Jones  v.  Mitchell,^  where  a  testator  gave  ;^8oo  out  of  the 
proceeds  of  land  which  he  directed  to  be  sold  to  trustees  for 
charities,  and  the  residue  of  such  proceeds  to  J.  R.,  it  was  held  that 
the  nullity  of  the  gift  of  the  ^800  inured  to  the  benefit,  not  of  J.  R., 
but  of  the  testator's  heir. 

In  Page  v.  Leapingwell,*  in  which  ;^200  of  the  proceeds  of  a 
sale  of  land  directed  by  the  testator  was  given  to  charities,  it  was 
held  that  the  ;^200  sank  for  the  benefit,  not  of  A,  to  whom  the 
residue  of  such  proceeds  was  given,  but  to  the  testator's  general 
residuary  devisee  and  legatee.  According,  however,  to  the  view 
adopted  by  the  M.  R.,  namely,  that  the  gift  to  charities  was  not 
the  fixed  sum  of  ;!^200,  but  one  fiftieth  of  the  entire  proceeds  of  the 
sale,  the  consequence  of  the  failure  of  the  gift  was  that  the  one 
fiftieth  went  to  the  testator's  heir. 

In  Noel  V.  Lord  Henley,^  where  a  testator  devised  land  to 
trustees  in  trust  to  sell  the  same  and  pay  to  his  wife,  whom  he  also 
appointed  his  residuary  legatee,  the  sum  of  ^^5000  out  of  the 
proceeds  o^  the  sale,  and  the  wife  died  during  the  testator's  life,  it 
was  held  successively,  by  the  Court  of  Exchequer  and  the  House 

1  4  Ves.  802. 

2  3  Bro.  C.  C.  128.     See  this  case  supra,  p.  287. 
8  I  Sim.  &  S.  290.     See  this  case  supra,  p.  288. 
*  18  Ves.  463. 

^  7  Price,  241,  Daniel,  211,  322. 


292        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

of  Lords,  that  the  ^^5000  sank  for  the  benefit  of  the  legatees  of  the 
residue  of  such  proceeds. 

In  Amphlett  v.  Parke  ^  a  testatrix  devised  land  to  her  executors 
in  trust  to  sell  the  same,  and  pay  legacies  out  of  the  proceeds  of  . 
the  sale,  and  then  gave  the  residue  of  such  proceeds  to  one  of 
said  trustees  on  certain  trusts;  and  some  of  the  legatees  having 
died  during  the  life  of  the  testatrix,  Sir  J.  Leach,  V.  C,  held, 
though  for  unsatisfactory  reasons,  that  their  legacies  sank  for  the 
benefit  of  the  residuary  legatee  of  such  proceeds,  but  Lord 
Brougham,  on  appeal,  held  that  the  amount  of  the  lapsed  legacies 
went  to  the  heir.  There  was  an  appeal  to  the  House  of  Lords,  but 
the  case  was  compromised,  the  heir  and  the  legatee  of  the  residue 
dividing  the  fund  between  them. 

In  Green  v.  Jackson  ^  a  testator  devised  land  to  his  executors  in 
trust  to  sell  the  same  and  apply  certain  specified  sums  to  charities 
and  the  residue  of  the  proceeds  of  the  sale  for  the  benefit  of  certain 
persons  named,  and  the  gift  to  the  charities  being  void,  it  was  held, 
though  for  unsatisfactory  reasons,  that  the  nullity  of  those  gifts 
inured  to  the  benefit  of  the  legatees  of  the  residue  of  the  proceeds 
of  the  sale. 

There  is  also  another  distinction  between  a  direction  by  a  tes- 
tator to  sell  his  land  for  the  purpose  of  making  a  gift  of  the  pro- 
ceeds of  the  sale,  and  a  direction  by  him  to  sell  the  same  land  for 
the  purpose  of  satisfying  a  charge  thereon,  namely,  that,  in  the 
former  case,  the  direction  constitutes  the  sole  authority  for  making 
the  sale,  and  is  therefore  indispensable  to  the  validity  of  the  gift, 
while,  in  the  latter  case,  the  purpose  of  the  testator  will  be  entirely 
accomplished  by  making  a  gift  of  the  money,  and  charging  the 
same  on  the  land,  as  he  will  thereby  subject  the  land  to  a  real 
obligation,  and  the  regular  and  appropriate  mode  of  enforcing  such 
an  obligation  is  by  selling  the  thing  which  is  subject  to  it.     Still 
another  distinction  is  that,  in  the  former  case,  however  small  a 
portion  of  the  proceeds  of  the  sale  the  testator  may  give  away,  the 
heir  will  have  no  means  of  preventing  a  sale  of  the  whole  of  the 
land,  as  it  is  only  by  such  sale  that  the  amount  of  money  to  which 
the  legatee  will  be  entitled  can  be  ascertained,  while,  in  the  latter 
case,  the  heir  can  always  prevent  a  sale  of  any  of  the  land  by  pay- 
ing the  amount  charged  on  it,  as  the  obligation  to  which  the  land 
is  subject  will  thus  be  extinguished. 

1  I  Sim.  275,  2  R.  &  M.  221.     See  this  case  supra,  p.  2S8. 

2  S-Russ.  35,  2  R.  &  M.  238. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        293 

As  the  validity  and  effect  of  every  testamentary  direction  to  sell 
land  and  of  every  testamentary  charge  on  land  depends  so  largely 
upon  the  testamentary  gift  or  gifts  which  are  made  of  the  proceeds 
of  such  sale  and  of  the  money  so  charged,  it  becomes  important 
to  ascertain  how,  i.  c,  by  what  words,  such  gift  or  gifts  can  be 
made. 

A  testamentary  gift  of  the  produce  of  land  directed  by  a  testator 
to  be  sold  partakes  of  the  nature  partly  of  a  gift  of  land  and  partly 
of  a  gift  of  personal  property.  On  the  one  hand,  the  property  is 
in  the  form  of  land  when  the  testator  dies,  and  therefore  the  ex- 
ecutor has  nothing  to  do  with  it.  The  land  descends  to  the  heir 
unless  it  is  devised  to  a  trustee  to  be  sold,  and  remains  vested  in 
the  heir  until  it  is  sold,  and  the  legatee  receives  his  legacy,  either 
through  the  trustee  to  whom  the  land  is  devised,  or  through  the 
person  who  is  directed  to  make  the  sale.  Moreover,  a  gift  of  the 
produce  of  land  directed  to  be  sold  will  include,  by  implication,  a 
gift  of  the  rents  and  profits  of  the  land,  until  the  sale  is  made,  unless 
there  be  an  express  gift  of  such  rents  and  profits.  From  the  testa- 
tor's death  also  to  the  time  of  the  sale  a  right  is  vested  in  the  legatee 
to  have  the  land  sold.  On  the  other  hand,  the  equitable  ownership 
of  the  land  never  vests  in  the  legatee,  but  remains  in  the  heir  from 
the  testator's  death  until  the  sale,  subject  to  the  right  of  the 
legatee  to  receive  the  rents  and  profits,  as  just  stated,  and  the 
legatee  receives  the  corpus  of  his  legacy  in  the  form  of  money. 
For  most  practical  purposes,  therefore,  the  gift  is  a  gift  of  personal 
property,  but  of  personal  property  which  does  not  belong  to  the 
testator  at  the  time  of  his  death.  By  what  form  of  words,  then, 
can  such  a  gift  be  made? 

It  is  the  office  of  a  will,  as  it  is  of  a  deed,  to  transfer  property, 
the  most  important  difference  between  the  two  being  that  a  deed 
takes  effect  upon  delivery,  while  a  will  takes  eftect  only  upon  the 
death  of  the  testator.  Presumptively  a  will,  like  a  deed,  produces, 
the  moment  that  it  becomes  operative,  all  the  effect  that  it  ever 
produces,  /.  c,  it  transfers  all  the  property  which  the  testator,  at 
the  moment  of  his  death,  is  capable  of  transferring,  and  which  he 
shows  an  intention  to  transfer.  Moreover,  to  show  an  intention  to 
transfer  all  the  property  which  the  testator  shall  at  his  death  be 
capable  of  transferring,  the  best  way  is  for  him  to  use  the  fewest 
and  most  comprehensive  words  of  description.  For  example, 
these  three  words,  "  all  my  property,"  will  be  sufficient  in  every 
case  that  can  happen.     If,  however,  the  testator  expects  his  will 


294        ^    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

to  produce  an  effect,  not  at  his  death,  but  at  some  subsequent 
time,  and  especially  if  the  effect  be  such  as  the  testator  is  not 
capable  of  producing  at  the  time  of  his  death,  he  must  declare  his 
intention  by  specific  and  appropriate  words.  If,  for  example,  a 
testator,  instead  of  devising  his  land  beneficially,  which  he  could 
do  by  the  three  words  just  named,  wishes  to  have  the  same  sold 
after  his  death,  and  to  have  the  money  thus  obtained  divided 
among  certain  persons,  he  must  give  the  requisite  authority  and 
direction  to  sell  the  land,  and  must  then  give  the  money  to  those 
whom  he  wishes  to  have  it,  or  direct  it  to  be  divided  among  them, 
and  if  he  should  simply  authorize  and  direct  a  sale  of  his  land, 
and  then  say,  "  I  give  all  my  property  to  A,  B,  and  C  to  be 
divided  among  them  equally,"  A,  B,  and  C  would  take  all  his 
property  in  the  condition  that  it  was  in  at  his  death,  and  his 
direction  to  sell  his  land  would  go  for  nothing. 

If,  then,  a  testator  should  authorize  and  direct  his  executors  to 
sell  his  land,  and  divide  the  proceeds  of  the  sale  among  A,  B,  and 
C  equally,  and  should  appoint  D  his  residuary  legatee,  and  A 
should  die  during  the  testator's  life,  what  would  become  of  the  one 
third  of  the  proceeds  of  the  sale  of  the  land  which  the  testator 
intended  for  him?  I  trust  the  reader  will  have  no  doubt  as  to  how 
this  question  should  be  answered,  namely,  that  the  one  third  will 
go  to  the  testator's  heir.  It  is  certain  that  D  can  make  no  claim 
to  it;  nor  could  he  if  the  testator  had  said:  "  If  any  of  my  property 
shall  not  be  otherwise  effectively  disposed  of  by  this  my  will,  I 
give  the  same  to  D,"  unless,  indeed,  such  a  gift  would  be  a  devise 
to  D  of  one  third  of  the  testator's  land.  To  enable  D  to  say  the 
testator  had  given  to  him  the  one  third  of  the  proceeds  of  the  sale 
of  the  land  which  was  intended  for  A,  the  gift  to  D  must  contain 
words  showing  that  the  testator  had  the  proceeds  of  his  land  dis- 
tinctly in  his  mind  and  intended  to  include  them  in  his  gift,  so  far 
as  they  should  be  otherwise  undisposed  of. 

Next,  suppose  a  testator  give  to  A,  B,  and  C  j^iooo  each,  and 
charge  the  same  on  his  land,  either  in  aid  of  his  personal  estate,  or 
concurrently  with  it,  or  exclusively  of  it,  and  appoint  D  his  resid- 
uary legatee,  and  A  dies  during  the  testator's  life.  What  will 
become  of  the  legacy  intended  for  A?  The  true  answer  seems  to 
be  that  nothing  will  become  of  it,  as  it  will  never  have  any 
existence.  The  only  consequence  of  A's  death  will  be  that  there 
will  be  more  property  by  $iOOO  for  some  one  else  than  there  would 
otherwise  have  been.     The  legacies  to  A,  B,  and  C    differ  from 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        295 

pecuniary  legacies  pure  and  simple  only  in  having  additional 
security  for  their  payment,  and  in  the  fact  that,  so  far  as  they  fall 
upon  the  testator's  land,  his  executor  as  such  will  have  nothing  to 
do  with  them,  and  neither  of  these  circumstances  is  at  all  material 
for  the  present  purpose,  A's  death,  therefore,  like  the  death  of 
any  pecuniary  legatee  before  his  legacy  vests,  will  leave  everything 
respecting  the  testator's  estate  just  as  it  would  have  been  if  no 
legacy  had  been  given  to  A.  To  whose  benefit,  then,  will  the 
lapse  of  A's  legacy  inure?  So  far  as  it  would  have  fallen  upon 
the  personal  estate,  its  lapse  will  inure  to  the  benefit  of  D  ;  i.  e.,  his 
residuary  bequest  will  be  so  much  larger.  So  far  as  A's  legacy 
would  have  fallen  upon  the  testator's  land,  its  lapse  will  inure 
to  the  benefit  of  the  testator's  heir,  /,  e.,  by  the  extinguishment  of 
the  obligation  to  which  the  land  would  otherwise  have  been  sub- 
ject. If  the  land  had  been  devised  beneficially,  of  course  the 
lapse  would  have  inured  to  the  benefit  of  the  devisee  instead  of 
the  heir.  It  could  not  possibly  inure  to  the  benefit  of  D,  except  as 
already  stated.  How  could  the  testator  have  prevented  the  lapse 
from  inuring  to  the  benefit  either  of  D  or  of  the  testator's  heir? 
Only  by  giving  to  some  one  else  a  legacy  of  the  same  amount  as 
that  intended  for  A,  and  charged  on  the  land  in  the  same  manner. 
It  will  be  seen,  therefore,  that  a  lapse,  whether  of  a  gift  of  a 
portion  of  the  produce  of  land  directed  to  be  sold,  or  of  a  pe- 
cuniary legacy  exclusively  charged  on  land,  will  inure  to  the  benefit 
of  the  person  to  whom  the  land,  subject  to  the  direction  to  sell  it, 
or  subject  to  the  charge,  shall  devolve  at  the  testator's  death,  unless 
the  testator  shall  do  something  to  prevent  such  a  result,  though 
the  reasons  in  the  two  cases  will  be  entirely  different.  How  then 
can  a  testator  divert  the  benefit  of  a  lapse,  or  other  failure,  of  the 
gift,  in  these  two  classes  of  cases,  from  the  person  to  whom  the 
land  will  devolve,  to  the  testator's  residuary  legatee?  In  cases  of 
the  first  class  he  can  do  this  by  simply  including  in  his  residuary 
gift  so  much,  if  any,  of  the  money,  produced  by  the  sale  of  his  land, 
as  shall  not  be  otherwise  effectively  disposed  of  by  his  will.  But, 
though  such  an  intention  is  not  improbable,  and  may  be  easily 
expressed  and  in  a  great  variety  of  ways,  yet  it  must  be  expressed 
in  some  way,  —  it  can  never  be  inferred.  In  cases  of  the  second 
class,  however,  it  seems  that  the  testator  cannot  divert  the  benefit 
of  the  lapse,  from  the  person  to  whom  the  land  will  devolve,  to  his 
residuary  legatee  as  such  ;  for,  as  he  can  give  the  benefit  of  the 
lapse  to  another  person  only  by  giving  him  a  legacy  of  the  same 


296        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

amount,  and  by  charging  it  upon  the  land  in  the  same  manner,  if 
he  give  such  a  legacy  to  his  residuary  legatee,  the  latter  will  not 
take  it  as  residuary  legatee,  but  as  any  other  person  would  take 
it,  so  that  he  will  fill  the  two  characters  of  residuary  legatee  and 
pecuniary  legatee.  The  fact,  therefore,  that  one  is  a  residuary 
legatee  will  not  aid  him,  in  the  least,  in  proving  that  he  also  has  a 
pecuniary  legacy  charged  on  land,  and  he  must  therefore  adduce 
the  same  evidence  that  would  be  required  of  any  other  person, 
2.  e.,  he  must  show  that  the  testator  has  given  him  a  pecuniary 
legacy,  of  the  same  amount  as  that  intended  for  A,  and  has  charged 
it  upon  his  land  in  the  same  manner. 

Such,  it  is  conceived,  are  the  principles  which  govern  these  two 
classes  of  cases.  The  authorities,  however,  are  in  a  very  unsatis- 
factory condition.  Unfortunately,  when  the  question  first  arose, 
the  erroneous  view  still  prevailed  that  the  produce  of  land  directed 
by  will  to  be  sold  constituted  a  part  of  the  testator's  personal  estate 
at  the  time  of  his  death,  and  devolved  as  such  under  his  will,  and 
hence  the  early  cases  erroneously  decided  that  such  produce,  if 
not  otherwise  effectively  disposed  of,  would  pass  under  an  ordinary 
residuary  bequest;  ^  and,  though  the  principle  on  which  these 
cases  were  decided  was  long  since  repudiated,  yet  the  cases  them- 
selves have  never  been  in  terms  overruled,  and  they  have  con- 
tinued to  exert  a  most  mischievous  influence  even  to  the  present 
moment. 

Thus,  in  Kennell  v.  Abbott,^  and  Page  v.  Leapingwell,^  the  old 
view  fully  prevailed ;  for,  in  the  former,  it  was  held  that  the  pro- 
ceeds of  a  sale  of  land  directed  by  a  testator,  so  far  as  the  same 
was  not  otherwise  disposed  of  by  the  testator,  went  to  his  general 
residuary  legatee ;  and  in  Page  v.  Leapingwell,  in  which  a 
pecuniary  legacy,  payable  out  of  the  proceeds  of  a  sale  of  land 
directed  by  the  testator,  was  void  by  statute,  it  was  held  that  the 
amount  of  that  legacy  passed  to  the  general  residuary  legatee  and 
devisee. 

In  Maugham  v.  Mason,^  Sir  W.  Grant,  M.  R.,  held  that  a  resid- 
uary bequest  did  not  carry  the  produce  of  land  directed  by  the 
testator  to  be  sold,  but  his  decision  did  not  affect  the  authority  of 
the  two  earlier  cases. 

1  Mallabar  v.  Mallabar,  Cas.  i.  Talbot,  78 ;  Durour  v.  Motteux,  i  Ves.  320,  i  Sim. 
&  S.  292,  «.  (d). 
■■^  4  Ves.  802. 
8  18  Ves.  463.  *  I  V.  5r  B ./tio. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         297 

In  P.yam  7'.  Munton,^  it  was  held  that  a  bequest  of  the  residue 
of  the  testator's  personal  estate  included  the  produce  of  land 
directed  to  be  sold,  but  it  was  upon  the  strength  of  the  context  of 
the  will.  The  same  was  also  held,  and  for  the  same  reason,  in 
Griffiths  v.  Pruen,-  There  seems,  however,  to  have  been  nothing 
in  the  context  to  warrant  the  decision,  except  that  it  shows  that 
the  testator  intended  to  dispose  of  all  his  property.  The  proceeds 
of  a  sale  of  his"  land  were  not,  however,  apart  of  his  property 
when  he  died,  and  there  was  nothing  in  the  terms  of  his  residuary 
bequest  to  indicate  that  he  intended  to  include  such  proceeds. 
The  inference  rather  was  that  he  thought  the  latter  would  con- 
stitute a  part  of  his  personal  estate  when  he  died,  and  would  there- 
fore pass  by  the  residuary  clause.  All  the  previous  gifts  were  of 
pecuniary  legacies,  and  it  is  clear  that  none  of  these  could  have 
been  paid  out  of  the  proceeds  in  question,  though  the  personal 
estate  had  been  insufficient  to  pay  them,  and  yet  the  testator 
clearly  expected  them  to  be  paid  out  of  his  personal  estate  and 
out  of  such  proceeds  indiscriminately.  There  would  seem  to  have 
been  a  much  stronger  reason  for  holding  that  the  land  itself  passed 
by  the  residuary  clause.  It  was  not  devised  otherwise,  but  was 
simply  directed  to  be  sold;  and  as  there  was  no  gift  of  the  pro- 
ceeds of  the  sale,  the  direction  to  sell  was  invalid  and  inoperative. 
Moreover,  the  residuary  clause  was  in  its  terms  equally  applicable 
to  real  and  personal  estate. 

In  Spencer  v.  Wilson^  it  was  held  that  the  produce  of  land 
directed  to  be  sold  passed  under  the  words  "  The  residue  of  my 
said  personal  estate  so  converted  into  money,"  and  this  seems  to 
have  been  a  reasonable  construction  of  the  will.  The  testator 
directed  a  sale  of  all  his  land,  and  all  the  residue  of  his  personal 
estate  which  did  not  consist  of  money,  and  payment  of  his  debts, 
legacies,  and  life  annuities,  out  of  his  money  and  the  proceeds  of 
said  sale.  Subject  to  these  payments  the  residue  of  said  per- 
sonal estate  so  converted  into  money  was  to  go  to  the  testator's 
four  natural  children,  each  to  receive  his  share  when  he  attained 
twenty-one,  or,  in  the  case  of  daughters,  married,  the  income  of 
the  share  of  each  to  be  applied  for  his  benefit  in  the  meantime. 
The  fund  was,  therefore,  to  remain  in  the  hands  of  trustees  for  a 
considerable  time,  and  the  gift  of  it  consisted  entirely  in  directions 
to   the  trustees  to  pay    or  apply  it.     In  giving  directions  to  his 

1  I  Russ.  &  M.  503.  2  II  Sim.  202.  »  l.  R.,  16  Eq.  501. 


298        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

trustees,  therefore,  the  testator  naturally  looked  upon  the  property, 
not  as  it  would  be  at  the  time  of  his  death,  but  as  having  the 
quality  which  he  expected  it  to  have  as  and  when  his  directions 
became  operative.  In  fact,  the  testator's  property  consisted 
mostly  of  land,  and  it  had  all  been  sold  and  there  was  a  large 
residue. 

In  Court  V.  Buckland  ^  the  testator  directed  his  executors  and 
trustees  to  sell  his  land,  and  so  much  of  his  residuary  personal 
estate  as  should  be  of  a  salable  nature,  and  get  in  the  rest,  and  to . 
dispose  of  the  net  money  to  arise  from  such  real  and  residuary 
personal  estate  "  according  to  the  trusts  hereinafter  declared  con- 
cerning the  same."  In  fact,  however,  he  afterwards  declared  no 
trusts  of  such  net  money,  but  only  of  his  residuary  personal 
estate.  Still,  it  was  held  by  Sir  G.  Jessel,  M.  R.,  that  the  trust 
thus  declared  included  the  proceeds  of  the  sale  of  land,  not  be- 
cause such  proceeds  were  personal  estate  when  the  testator  died, 
but  because  he  thought  himself  authorized  so  to  change  the 
words  just  quoted  as  to  make  them  read,  "  according  to  the  trusts 
hereinafter  declared  concerning  my  residuary  personal  estate."  It 
is  submitted,  however,  that  this  was  assuming  a  power  which  no 
court  can  rightfully  exercise,  namely,  the  power  of  making  a  will 
for  a  testator  when  he  has  failed  himself  to  make  such  a  will  as  he 
intended  to  make.  The  truth  seems  to  be  that  the  testator,  in  his 
residuary  gift,  used  the  words  "  residuary  personal  estate  "  by 
mistake,  instead  of  the  words  "  the  net  money  arising  from  my 
real  and  personal  estate."^ 

The  most  singular  case  of  all,  however,  is  that  of  Watson  v. 
Arundel,^  in  which  the  Irish  Court  of  Appeal  in  Chancery  and  the 
House  of  Lords,  successively  and  unanimously,  held,  reversing  the 
decree  of  the  court  below,  that  a  residuary  legatee  as  such  took 
the  produce  of  land  directed  by  the  will  to  be  sold,  though  the 
will  contained  in  terms  no  disposition  whatever  of  such  proceeds, 
and  afforded  no  evidence  whatever  that  the  testator  used  the  term 
"  residuary  legatee  "  in  any  other  than  its  legal  sense.  Upon  this 
case  I  submit  to  the  reader  the  following  propositions:  i.  The 
testator  gave  pecuniary  legacies  to  an  amount  much  exceeding 
the  total  amount  of  his  personal  estate,  and,  though  he  said  noth- 

1  I  Ch.  D.  605. 

2  According  to  the  report,  the  testator  used  the  phrase  "  net  money"  three  times, 
and  the  phrase  "  my  residuary  personal  estate  "  five  times,  in  his  will. 

8  Irish  Reports,  10  Eq.  299, 1 1  id.  53 ;  s.  c.  [nom.  Singleton  v.  Tomlinson)  3  A.  C.  404. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        299 

ing  as  to  the  property  out  of  wliich  such  legacies  should  be  paid, 
yet  there  is  no  reason  to  doubt  that  he  expected  them  to  be  paid 
out  of  the  produce  of  his  land,  at  least  in  aid  of  his  personal  estate, 
and  both  courts  held  that  the  land  was  by  implication  charged 
with  the  payment  of  such  legacies  ratably  with  the  personal 
estate.  2.  The  arguments  in  favor  of  the  pecuniary  legacies  being 
a  charge  on  the  land  have  no  bearing  on  the  question  whether  the 
produce  of  the  land  was  given  to  the  residuary  legatee.  These 
arguments  did,  indeed,  in  the  view  that  the  courts  took  of  them, 
have  the  effect  of  creating  a  fund  for  the  residuary  legatee  by 
leaving  for  him  a  portion  of  the  personal  estate  which  would  other- 
wise have  been  entirely  exhausted  by  the  pecuniary  legacies ;  but 
they  did  not  aid  the  courts  in  the  least  in  enlarging  that  fund  by 
including  in  it  the  residue  of  the  produce  of  the  land.  Imposing 
an  obligation  upon  land  is  an  entirely  different  thing  from  giving 
the  proceeds  of  the  sale  of  the  same  land.^  3.  The  residuary 
clause  contains  in  terms  no  gift  of  anything,  but  simply  appoints 
a  residuary  legatee,  the  words  being,  "  I  constitute  T.  Tomlinson 
my  residuary  legatee."  These,  moreover,  are  the  last  words  in  the 
will,  and,  though  they  do  not  constitute  an  entire  sentence,  yet  the 
previous  part  of  the  sentence  has  no  connection  with  them  in  sense, 
it  being  merely  a  gift  of  certain  specific  articles  to  another  person. 
Nor  is  the  slightest  light  thrown  upon  the  residuary  clause  by  any 
part  of  the  will,  unless  the  direction  to  sell  the  testator's  land  be 
regarded  as  throwing  light  upon  it.  A  direction  by  a  testator, 
express  or  implied,  to  sell  land  is,  indeed,  a  sine  qua  non  of  any  gift 
of  the  proceeds  of  a  sale  of  such  land,  but  it  does  not  constitute 
the  smallest  element  in  any  such  gift.  4.  It  inevitably  follows  that 
the  residuary  clause  carried    nothing   except  what  was    personal 

1  In  Wildes  v.  Davies,  22  L.  J.,  Chan.  495,  a  testator  devised  his  land  to  his  execu- 
tors in  trust  to  sell  the  same,  and  hold  the  proceeds,  with  the  residue  of  his  personal 
estate,  on  the  trusts  thereinafter  declared.  In  fact,  however,  he  afterwards  declared 
no  trusts,  but  simply  gave  pecuniary  legacies  and  appointed  residuary  legatees.  It 
appeared  from  the  will  that  the  testator  intended  that  his  pecuniary  legacies  should  be 
a  charge  on  his  land,  and  the  question  was  whether  the  residue  of  the  proceeds  of  the 
sale  of  the  land  should  go  to  the  residuary  legatees  or  to  the  heir;  and  Stuart,  V.  C, 
failing  to  distinguish  between  a  charge  on  land  and  a  gift  of  the  proceeds  of  the  sale  of 
land,  declared  that,  as  the  pecuniary  legacies  were  payable  out  of  the  proceeds  of  the 
sale  of  the  land,  there  was  a  gift  of  such  proceeds  to  the  pecuniary  legatees  to  the 
extent  of  their  legacies,  and  hence  the  testator  must  have  used  the  term  "  legacy  "  as 
including  the  proceeds  of  the  sale  of  his  land.  His  conclusion  was,  therefore,  that 
the  residue  of  such  proceeds  went  to  the  residuary  legatee. 

It  is  submitted  that  the  will  sufficiently  shows  that  the  testator  regarded  the  giving 
of  legacies  as  a  declaration  of  trust  and,  if  so,  all  difficulty  is  removed. 


300        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

estate  prior  to  the  testator's  death,  and  therefore  the  decision 
proves  that  the  testator's  land  was,  by  the  direction  to  sell  it,  con- 
verted in  equity  into  personal  estate  during  the  testator's  life,  /.  e., 
before  the  will  took  effect.  5.  If,  therefore,  full  effect  is  to  be 
given  to  the  decision,  it  places  the  law  of  the  United  Kingdom 
where  it  was  prior  to  the  case  of  Ackroyd  v.  Sniithson,^  i.  c,  at  the 
time  when  Mallabar  v.  Mallabar  and  Durour  v.  Motteux  were 
decided. 

In  conclusion  it  may  be  said  that  Court  v.  Buckland,  and  Watson 
V.  Arundel  are  conspicuous  illustrations  of  the  adage  that  "  Hard 
cases  make  bad  law." 

I  have  hitherto  treated  only  of  the  indirect  mode  of  converting 
land  into  personal  property,  namely,  that  of  selling  the  land  ;  but, 
though  this  is  the  most  common  mode,  and  the  one  which  is 
attended  with  the  most  important  legal  consequences,  and  is  the 
only  one  which  is  connected  with  equitable  conversion,  yet  there 
is  a  direct  mode  of  converting  land  into  personal  property  which 
requires  some  attention,  namely,  that  which  is  effected  by  severing 
a  portion  of  the  land  from  the  general  mass,  and  thus  converting 
the  severed  portion  into  a  chattel. 

These  two  modes  of  conversion  differ  from  each  other,  not 
only  in  the  particular  just  adverted  to,  but  in  other  particulars 
also.  The  former  not  only  requires  the  mental  and  physical  co- 
operation of  the  respective  owners  of  the  things  to  be  exchanged 
for  each  other,  but  also  involves  an  interchange  of  the  ownership 
of  each,  and  this  requires,  in  addition  to  the  co-operation  of  the 
parties,  the  sanction  of  the  law.  The  latter,  on  the  other  hand, 
involves  only  the  physical  act  of  severance,  and  that  act  may  not 
only  be  performed  by  a  single  person,  but  may  be  performed  by  a 
total  stranger  to  the  land  as  well  as  by  its  owner,  and  hence  maybe 
wrongful  as  well  as  rightful.  For  the  present  purpose,  however, 
it  will  be  necessary  to  consider  only  such  acts  of  severance  as  are 
rightful. 

The  most  familiar  instance  of  converting  land  into  chattels  by  a 
rightful  severance  of  a  portion  of  the  land  from  the  general  mass 
is  the  gathering  of  the  annual  crops.  Until  gathered,  annual  crops 
are  a  part  of  the  land,  but  the  moment  they  are  severed  from  the 
land,  they  become  personal  property,  and  belong  to  the  person  by 
whom,  or  by  whose  authority,  they  are  rightfully  gathered.  Rents 
also  follow  the  analogy  of  annual  crops,  the  reason  probably  being 

1  I  Bro.  C.  C.  503. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         30I 

that  the  annual  rent  of  agricultural  land  anciently  consisted  of  a 
portion  of  the  crops.  Hence  rent  not  yet  payable  is  a  part  of  the 
land,  but  the  moment  it  becomes  payable  it  is  personal  property. 
When,  therefore,  a  landowner  dies,  the  land,  with  all  rent  and 
income  thereafter  to  accrue,  goes  to  the  heir,  while  arrears  of  rent, 
with  other  income  already  accrued,  go  to  the  executor.^ 

Another  common  instance  of  converting  land  into  chattels  by 
acts  of  severance  is  the  cutting  of  timber.  Timber  differs  from  an 
annual  crop  in  this,  that,  while  the  right  to  gather  an  annual  crop, 
and  the  ownership  of  the  crop  when  gathered,  are  regularly  vested 
in  the  person  for  the  time  being  rightfully  in  the  possession  of  the 
land,  the  right  to  cut  timber,  and  the  ownership  of  the  timber  when 
cut,  are  regularly  vested  only  in  the  owner  of  the  inheritance  {i.  e.y 
in  fee  or  in  tail)  in  possession  of  the  land.  In  the  case  of  a  settled 
estate,  however,  it  frequently  happens  that  timber  requires  to  be 
cut,  either  because  it  is  deteriorating  in  quality,  or  because  it 
requires  thinning,  or  for  both  of  these  reasons,  and  yet  there  is  no 
person  in  existence  who  is  authorized  to  cut  it,  the  tenant  in 
possession  commonly  being  only  tenant  for  life.  In  such  cases, 
therefore,  courts  of  equity  have  assumed  jurisdiction  to  order  the 
timber  to  be  cut  and  sold,  acting  on  behalf  of  all  persons  in  interest.^ 
The  proceeds  of  the  sale  of  the  timber  will,  therefore,  follow  the 
same  rule  that  would  be  followed  by  the  proceeds  of  the  sale 
of  the  land,  if  the  land  were  sold,  i.  e.,  it  will  follow  the  limitations 
of  the  settlement,  until  it  comes  to  a  person  who  has  an  estate  of 
inheritance  in  possession  in  the  land,  —  at  which  moment  it  will 
vest  in  such  person  absolutely,  but  as  personal  property.  Thus,  in 
Hartley  v.  Pendarves,^  where  timber  on  an  estate  vested  in  A  for 
life,  with  remainder  to  B  in  fee,  was  ordered  to  be  cut,  and  the 
same  was  cut  and  sold,  and  the  proceeds  invested,  and  A  received 
the  dividends  till  her  death.*  in  October,  1888,  and  then  B  re- 
ceived them  till  his  death,  in  June,  1894,  it  was  held  that  the  corpus 
of  the  fund  devolved  on  his  personal  representative ;  and  it  would 
have  been  the  same  though  B  had  been  only  tenant  in  tail. 
And  though,  in  Field  v.  Brown,^  where  timber  was  cut,  by 
the  order  of  the  court,  on  an  estate  vested  in  A  for  life,  remainder 


1  See  Williams  on  Executors,  Pt.  II.  Bk.  III.  Ch.  I.  §  II.  p.  724,  727  of  9th  ed. 

2  See  Hartley  v.  Pendarves,  C'9<3G  -  Ch.  498,  500. 
8  QigoO  2  Ch.  498. 

*  See  Tooker  v.  Annesley,  5  Sim.  235. 
6  27  Beav.  90. 


302        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

to  her  issue  in  tail,  remainder  to  B  for  life,  remainder  to  his  issue 
in  tail,  remainder  to  B  in  fee,  and  B  died  without  issue,  and  his 
remainder  in  fee  descended  to  A  as  his  heir,  and  then  A  died 
without  issue,  it  was  held  that  the  fund,  in  which  the  proceeds  of 
the  sale  of  the  timber  had  been  invested,  passed  with  the  land  to 
A's  heir,  yet  the  decision  was  disapproved  in  Hartley  v.  Pendarves, 
where  it  was  also  intimated  that  the  decision  was  inconsistent  with 
the  subsequent  decision  by  the  same  judge  in  Dyer  v.  Dyer,i  and 
that  the  judge  committed  the  same  error  in  Field  v.  Brown  that 
he  had  previously  committed  in   Cooke  v.  Dealey.^ 

If  a  tenant  for  life  of  a  settled  estate  cut  and  sell  timber  without 
authority,  the  proceeds  of  the  sale  will  follow  the  limitations  of 
the  settlement,  just  as  if  the  cutting  and  selling  had  been  pursuant 
to  the  order  of  a  court  of  equity,  except  that  the  tenant  for  life 
will  not  be  permitted  to  derive  any  benefit  from  his  wrongful  acts, 
and  hence  the  entire  proceeds  of  the  sale  will  go  to  those  who 
shall  be  entitled  to  the  estate  in  remainder  or  reversion.^ 

Another  common  instance  of  converting  land  into  personal 
property  by  acts  of  severance  is  the  digging  of  mines.  This  mode 
of  severing  a  portion  of  land  from  the  general  mass  does  not  seem, 
however,  to  have  given  rise  to  any  questions  requiring  special 
attention  in  this  place. 

Thus  far,  as  the  reader  will  have  observed,  while  I  have  been 
writing  under  the  title  of  "  Equitable  Conversion,"  I  have  in  fact 
occupied  myself  exclusively  with  actual  conversion,  and  with  cer- 
tain legal  questions  and  distinctions  upon  which  actual  conversion 
and  equitable  conversion  alike  depend.  Perhaps,  therefore,  the 
reader  will  say  I  have  been  wrong,  either  in  the  title  that  I  have 
chosen,  or  in  what  I  have  written  under  that  title ;  and,  with  a  view 
to  avoiding  or  mitigating  such  a  criticism,  I  will  state  briefly  my 
reasons  for  the  course  that  I  have  taken. 

I  do  not  think  I  have  made  any  mistake  in  selecting  my  title. 
I  regard  it  as  indispensable  that  a  title  should  be  brief,  and  also 
intelligible  on  its  face.  If  my  title  had  been  "  Conversion,"  it  would 
have  been  brief,  but  it  would  not  have  been  intelligible.  I  doubt, 
indeed,  if  many  readers  would  have  had  any  definite  idea  of  what 
I  proposed  to  write  about  if  I  had  adopted  that  title.  The  term 
"  Equitable  Conversion,"  on  the  other  hand,  is  both  brief  and  intel- 
ligible.    Moreover,  my  sole  object  has  been,  from  the  beginning, 


1  34  Beav.  504.         ^  22  Beav.  196.         »  Powlett  v.  Duchess  of  Bolton,  3  Ves.  374- 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         303 

to  write  upon  equitable  conversion,  and  my  only  reason  for  admit- 
ting other  topics  has  been  that  a  consideration  of  them  would 
facilitate  the  accomplishment  of  that  object.  I  think,  therefore, 
there  is  no  doubt  that  "  Equitable  Conversion  "  was  my  proper 
title. 

Nor  do  I  think  I  have  made  any  mistake  in  what  I  have  written 
under  the  title  of  "  Equitable  Conversion."  i.  As  equity  is  in  the 
nature  of  a  supplement  to  the  common  law,  no  branch  of  equity 
can  be  thoroughly  understood,  unless  its  relation  to  the  common 
law  is  understood.  2.  When  any  branch  of  equity  is  founded  upon 
or  involves  principles  of  law  as  well  as  principles  of  equity,  every 
student  should  acquire  a  knowledge  of  the  former  before  he  at- 
tempts to  master  the  latter.  3.  The  subject  of  equitable  conversion 
involves  all  the  legal  principles  and  distinctions  which  have  been 
discussed  in  the  preceding  pages.  4.  All  the  cases  which  have 
been  cited  and  discussed  are  always  treated  in  the  books  as  cases 
of  equitable  conversion.  5.  The  only  question  open  to  me,  there- 
fore, was  whether  I  should  deal  with  actual  conversion  and  those 
legal  principles  and  distinctions  which  are  common  to  actual  con- 
version and  equitable  conversion  before  taking  up  the  latter,  or 
whether,  ignoring  the  subject  of  actual  conversion,  I  should  treat 
those  principles  and  distinctions  as  a  part  of  the  doctrine  of  equi- 
table conversion,  and  it  seemed  to  me  there  could  be  no  doubt 
that  the  former  was  my  true  course.  6.  The  reader  may,  there-. 
fore,  regard  the  preceding  pages  as  clearing  the  way  for  what  may 
be  considered  as  the  proper  subject  of  this  series  of  articles. 


ARTICLE    XII  U 


Equitable   Conversion. 
III. 

THE  way  having  been  cleared,  as  stated  at  the  end  of  my  last 
article,  I  now  proceed  to  consider  the  subject  of  equitable 
conversion. 

Equitable  conversions,  like  actual  conversions,  are  of  two  kinds, 
namely,  those  which  are  direct  and  those  which  are  indirect;  and 
the  reason  for  making  this  division  of  equitable  conversions  is 
the  same  as  that  for  making  the  corresponding  division  of  actual 
conversions,  namely,  that  a  direct  equitable  conversion  is,  so  far 
as  it  is  a  conversion  at  all,  a  direct  or  immediate  change  (or  what 
Lord  Hardwicke  in  one  case^  calls  a  transmutation  and  in  an- 
other case"^  a  transubstantiation)  of  one  thing  into  another,  as,  for 
example,  land  into  money  or  money  into  land,  while  an  indirect 
equitable  conversion  is,  so  far  as  it  is  a  conversion  at  all,  an 
exchange  of  one  thing  for  another,  as,  for  example,  land  for 
money  or  money  for  land,  and  is  therefore  a  change  of  land  into 
money  or  of  money  into  land  only  indirectly,  i.  e.,  through  the 
medium  of  such  exchange. 

A  direct  equitable  conversion  differs  from  a  direct  actual  con- 
version in  this,  namely,  that  while  the  latter  is  a  fact,  the  former  is 
a  pure  fiction.     To  say,  indeed,  that  a  direct  equitable  conversion 

1  i8  IIarv.  L.  Kkv.  245. 

2  Guidot  V.  Guidot,  3  Atk.  254,  256. 

8  Trafford  v.  Boehm,  3  Atk.  440,  448.  It  must  be  confessed,  however,  that  Guidot 
V.  Guidot  and  Trafford  v.  Boehm  are  both  cases  of  indirect  conversion. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         305 

is  other  than  a  pure  fiction  would  be  to  claim  for  equity  those 
miraculous  powers  which  the  ancient  alchemists  claimed  for 
themselves. 

In  order  to  state  the  difiference  between  an  indirect  equitable 
conversion  and  an  indirect  actual  conversion,  it  is  necessary,  first, 
to  remind  the  reader  that,  in  the  making  of  an  actual  exchange  of 
one  thing  for  another,  there  are  generally,  though  not  necessarily,^ 
two  stages,  namely,  first,  the  creating  by  the  owner  of  the  thing  to 
be  exchanged  of  a  right  in  another  person  to  have  the  exchange 
made,  with  a  correlative  obligation  to  make  the  exchange,  and, 
secondly,  the  actual  making  of  the  exchange  ;  and,  this  being 
borne  in  mind,  the  reader  needs  only  to  be  told  further  that  when- 
ever these  two  stages  exist  in  the  making  of  an  actual  exchange, 
the  creating  of  the  right,  if  it  be  one  which  can  be  specifically 
enforced,  causes  an  equitable  conversion.  It  may  be  added  that 
this  right  is  sometimes  legal,  and  sometimes  equitable  only. 

The  immediate  object  of  the  direct  equitable  conversion  is  to 
cause  a  thing  to  devolve,  on  the  death  of  its  owner,  not  according 
to  its  true  nature  and  quality,  but  according  to  the  nature  and 
quality  which  equity,  by  a  fiction,  attributes  to  it,  for  example,  to 
cause  land  to  devolve  as  if  it  were  money  or  money  as  if  it  were 
land.  So  also  it  is  the  immediate  object  of  an  indirect  equitable 
conversion  to  cause  the  right  to  have  an  exchange  made  to 
devolve,  on  the  death  of  its  owner,  not  according  to  the  legal 
nature  of  the  right,  /.  ^.,  as  a  chose  m  actioji,  but  according  to  the 
nature  and  quality  of  the  thing  to  be  acquired  by  the  exchange, 
for  example,  to  cause  a  right  to  have  land  exchanged  for  money, 
to  devolve  as  if  it  were  money,  or  to  cause  a  right  to  have  money 
exchanged  for  land  to  devolve  as  if  it  were  land. 

The  ultimate  object  of  a  direct  equitable  conversion  is  to  pro- 
mote justice,  to  aid  the  owner  of  property  in  accomplishing  an 
object  which  he  has  in  view  respecting  such  property,  or  to 
promote  public  policy.  The  ultimate  object  of  an  indirect  equi- 
table conversion,  on  the  other  hand,  is  to  give  more  full  and 
complete  effect  to  an  act  done  by  the  owner  of  property  in  respect 
to  such  property,  and  to  carry  out  more  fully  his  presumed  inten- 
tion respecting  the  same. 

Of  direct  equitable  conversions  there  are  more  than  one 
species.     The    most   familiar    is   where    an    actual    conversion    of 


1  Sufra,  pp.  261,  262. 
20 


S06        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

property  has  been  made  by  some  person  other  than  its   owner, 
and    under  such  circumstances  that  justice  requires  that,  on  the 
death  of  its  owner,  it  should  devolve  as  if  no  such  conversion  had 
been  made,  and  accordingly  equity  for  the  purposes  of  devolution 
re-converts  it,  /.  e.,  by  the  adoption  of  a  fiction,  treats  it  as  if  it  had 
been  actually  re-converted  or  as  if  it  had  never  been  converted, 
so  that  land  into  which  money  has  been  converted,  though  it  will 
devolve  at  law  as    land,    will    devolve    in    equity    as    money,    and 
money  into  which  land  has  been  converted,  though  it  will  devolve 
at  law  as  money,  will  devolve  in  equity  as  land.     In  short,  equity 
will  declare  the  heir  or  devisee  of  the  deceased,  on  whom  the  land 
has  devolved  at  law,  to  be  a  trustee  thereof  for  the  personal  repre- 
sentative of  the  deceased,  and  will  treat  him  accordingly,  and  will 
declare  the  personal  representative  of  the  deceased,  on  whom  the 
money  has  devolved  at  law,  to  be  a  trustee  thereof  for  the  heir  or 
devisee,  and  will  treat  him  accordingly.     It  will  be  seen,  therefore, 
that    this    species    of    direct   equitable    conversion    is    caused    by 
means    of  a   trust,  —  a,  trust,    however,   which    is    peculiar,  first, 
in  being  an  implied  or  constructive   trust,  i.  e.,  a  trust  created, 
not    by  the    owner    of  the    property,  but    by  equity    itself,    and, 
secondly,  in  being  precisely  like  the  ancient  use,  i.  e.,  a  simple  or 
passive  trust,  a  trust  in  which  the  cestui  que  trust  has  the  entire 
control  over  the  property  in  equity,  and  in  which  the  trustee  is 
merely  the    servant   of   the   cestui    que   trust,    and    has    no    other 
affirmative  duties  to  perform  than  to  convey  the  property  as  the 
cestui  que  trust  shall  direct. 

In  all  these  particulars  this  species  of  direct  equitable  conver- 
sion differs  widely  from  an  indirect  equitable  conversion,  for, 
though  a  trust  is  often  the  cause  of  the  latter,  yet  it  is  always  a 
trust  created  by  the  owner  of  the  property,  and  is  always  an  active 
trust,  —  a  trust  also  in  which,  if  the  trust  be  valid,  the  right  of  the 
cestui  que  trust  is  limited  entirely  to  enforcing  the  specific  per- 
formance of  the  trust.  Moreover,  it  is  not  the  existence  of  such  a 
trust,  but  its  capability  of  being  specifically  enforced  in  equity,  that 
is  indispensable  to  the  creation  of  an  indirect  equitable  conversion. 
While,  therefore,  it  is  the  doctrine  of  trust  that  causes  the  direct 
equitable  conversion  last  spoken  of,  a  trust  being  the  machinery  by 
which  equity  transfers  property  from  its  legal  owner  to  another 
person,  it  is  the  doctrine  of  specific  performance  that  causes  the 
indirect  equitable  conversion. 

If  we  look  a  little  more  closely  into  the  nature  of  these  two 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         307 

kinds  of  equitable  conversion,  and  observe  a  little  more  closely  the 
differences  between  them,  we  shall  find  that,  while  an  indirect 
equitable  conversion  constitutes  the  first  step,  and  the  first  step 
only,  toward  an  alienation  of  the  thing  to  be  converted,  and  an 
acquisition  by  the  alienor  or  some  other  person,  of  the  thing  into 
which  the  conversion  is  to  be  made,  the  direct  equitable  con- 
version now  in  question  constitutes  a  complete  alienation  in  equity 
of  the  thing  said  to  be  converted,  and  a  complete  acquisition  in 
equity  of  the  same  thing  by  another  person,  though  with  a  ficti- 
tious quality  attributed  to  it.  We  shall  also  find  that,  while  an 
indirect  actual  conversion  is  caused  by  the  exercise  of  an  absolute 
right  of  property,  and  hence  the  conversion  itself  is  absolute,  and 
an  indirect  equitable  conversion  is  caused  by  the  creation  of  a 
relative  right,  and  is  itself  relative  only,  the  direct  equitable  con- 
version in  question  is  caused,  not  by  the  exercise  of  any  right,  but 
by  the  power  of  equity,  and  hence  the  conversion  which  is  caused 
by  the  exercise  of  that  power  and  the  right  which  is  created  by  its 
exercise  are  both  absolute,  in  so  far  as  it  is  in  the  power  of  equity 
to  make  them  absolute.^ 

There  is  also  another  particular  in  which  the  direct  equitable 
conversion  in  question  differs  from  an  indirect  equitable  con- 
version, namely,  that  as  the  former  exists  only  for  the  purpose 
of  changing  the  devolution  of  the  property  which  it  affects,  so  it 
exists  only  for  an  instant  of  time,  while  as  the  latter  is  brought 
into  existence  by  the  creation  of  a  right  to  have  an  actual  conver- 
sion made,  so  it  continues  to  exist  until  that  right  is  specifically 
enforced,  or  otherwise  ceases  to  exist.  It  follows,  therefore,  that, 
when  a  direct  equitable  conversion  has  once  accomplished  its 
purpose  of  causing  money  to  devolve  as  if  it  were  land  or  land  as 
if  it  were  money,  the  fiction  ceases,  and  henceforth  equity 
regards  the  money  as  money  and  the  land  as  land. 

For  the  present,  however,  we  shall  be  occupied  exclusively  with 
equitable  conversions  of  the  indirect  kind,  and  my  chief  object 
in  saying  in  this  place  what  I  have  already  said  about  direct 
equitable  conversions  is  to  caution  the  reader  against  the  danger 
of  confounding  the  former  with  the  latter.  As  the  fact  of  a  direct 
equitable  conversion  is  much  more  easily  expressed  than  that  of 
an  indirect  one,  the  reader  will  often  find  himself  under  a  sore 

1  See  infroy  pp.  309,  319,  323,  327.  For  the  sense  in  which  the  terms  "absolute 
right"  and  "relative  right"  are  used  in  this  article,  see  13  Harv.  L.  Rev.  537-53S, 
546,  note. 


308        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

temptation,  when  dealing  with  indirect  equitable  conversions,  to 
say  of  money  that  it  is  land  in  equity  when  in  fact  it  is  merely 
liable  to  be  exchanged  for  land,  and  of  land  that  it  is  money  in 
equity  when  it  is  merely  liable  to  be  exchanged  for  money.  This 
temptation,  however,  he  must  resist  if  he  would  avoid  the  most 
serious  errors.  He  must  remember  that  while  actual  conversions  as 
well  as  equitable  conversions  may  be  either  direct  or  indirect,  yet 
the  only  actual  conversions  which  are  known  to  the  law  are  those 
which  are  indirect;  and  hence  direct  equitable  conversions  have  no 
actual  conversions  to  correspond  with  them.  If  an  actual  conver- 
sion of-  land,  for  example,  directly  into  money  or  of  money  into 
land  were  possible,  it  would  be  admitted  by  all  that  the  nomen- 
clature belonging  to  direct  equitable  conversions  could  be  used 
only  when  the  actual  conversion  which  was  to  follow  would  also  be 
direct.  The  fact  being,  however,  that  there  is  only  one  kind  of 
actual  conversion  known  to  the  law,  it  is  equally  true  that  the 
nomenclature  which  belongs  to  direct  equitable  conversions  can 
be  used  only  when  the  equitable  conversion  is  not  to  be  followed 
by  any  actual  conversion;  and  it  must  not  be  supposed,  because 
there  are  two  kinds  of  equitable  conversion,  and  only  one  kind 
of  actual  conversion,  that  therefore  the  latter  stands  in  the  same 
relation  to  each  of  the  former.  When  land  is  exchanged  for 
money,  the  land  never  becomes  money,  nor  the  money  land, 
either  in  equity  or  otherwise ;  when  the  exchange  is  made,  they 
both  change  owners,  but  the  land  remains  land  and  the  money 
remains  money  all  the  time,  in  equity  as  well  as  in  fact;  and  the 
only  reason  why  the  land  is  said  to  be  converted  into  money  and 
the  money  into  land  is  that  he  who  before  owned  the  land  now 
owns  the  money  instead,  and  he  who  before  owned  the  money 
now  owns  the  land  instead ;  and  the  only  reason  why  the  creation 
of  a  right  to  have  money  exchanged  for  land  is  said  to  cause  a 
conversion  of  the  money  into  land  in  equity  is  that  this  right 
dev^olves  as  if  it  were  land,  and  equity  looks  upon  it  as  substituted 
in  the  place  of  the  money. 

An  indirect  equitable  conversion  can  regularly  be  made  only 
by  the  owner  of  the  thing  to  be  converted,  and  in  a  broad  sense 
it  may  be  said  that  it  can  be  made  by  him  in  one  way  only, 
namely,  by  creating  in  some  other  person  a  right  to  have  an 
actual  conversion  made;  and  such  a  right,  if  it  be  one  which 
equity  will  specifically  enforce,  will  cause  an  equitable  conver- 
sion.    Why?     Because,  if  the  owner  of  such  a  right  die  during  its 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         309 

continuance,  the  right  will  devolve  in  equity,  if  it  be  a  right  to 
have  money  converted  into  land,  as  if  it  were  land,  and,  if  it  be  a 
right  to  have  land  converted  into  money,  it  will  devolve  as  if  it 
were  money.  Why  will  the  right  so  devolve?  Because  equity 
looks  upon  it  as  sure  to  be  specifically  enforced,  unless  the  cor- 
relative obligation  shall  be  voluntarily  performed,  and  when  the 
right  is  so  enforced,  or  the  correlative  obligation  is  so  performed, 
the  result  will  be  an  actual  conversion  of  money  into  land  or  of 
land  into  money,  with  all  the  consequences  which  follow  such  a 
conversion.  If,  for  example,  A  and  B  enter  into  an  ordinary 
bilateral  contract  for  the  sale  of  land  by  A  to  B,  we  may  assume 
that,  up  to  the  moment  when  the  contract  is  made,  A  owns  the 
land  to  be  sold  and  B  owns  the  money  to  be  paid  for  the  land, 
and  these  are  absolute  rights.^  When  the  contract  is  made,  A  and 
B  each  acquires  a  new  relative  right,  namely,  A  a  right  to  have 
money,  and  B  a  right  to  have  land,  and  at  the  same  time  each  of 
them  incurs  a  correlative  obligation,  namely,  A  to  convey  the 
land  and  B  to  pay  the  money;  and,  as  equity  regards  it  as  certain 
that  both  these  obligations  will  be  performed,  it  regards  the  new- 
relative  rights  as  having  superseded,  for  the  purposes  of  devolu- 
tion, the  former  absolute  rights.  To  be  sure,  B's  money  will,  in 
case  of  his  death,  in  form  devolve  upon  his  executor,  but  it  will 
be  only  a  form,  as  it  must  eventually  go  to  A  in  payment  for  the 
land.  So  A's  land  will  in  form  devolve,  in  case  of  his  death,  upon 
his  heir  or  devisee ;  but  this  again  will  be  only  a  form,  as  the  land 
will  eventually  have  to  be  conveyed  to  B  in  performance  of  A's 
obligation.  As,  therefore,  the  new  relative  rights  have  superseded 
in  equity  the  old  absolute  rights,  they  ought  to  devolve,  not  as  the 
old  absolute  rights  would  have  devolved,  but  as  the  new  absolute 
rights  would  devolve,  if  the  sale  had  been  complete ;  and  hence, 
if  B  die  before  the  purchase  is  completed,  his  new  relative  right 
under  the  contract  will  devolve  in  equity  on  his  heir  or  devisee.^ 

In  the  example  just  put,  moreover,  it  is  plain  that  B's  money, 
in  case  of  his  death,  does  not  become  land  in  equity  for  the  pur- 
poses of  devolution,  for  this  money  goes  to  A,  as  to  whom  no 
question  of  equitable  conversion  arises.  It  is  not,  therefore,  B's 
money,  but  his  right  to  A's  lartd,  that  is  treated  by  equity  as  land. 
So  also,  in  case  of  A's  death,  it  will  not  be  his  land,  but  his   right 

1  See  supra,  page  307,  note. 

2  Per  Lord  Hardwicke,  in  Gibson  v.  Lord  Montford,  i  Ves.  4S5,  494 ;  Milner  v. 
Mills,  Mos.  123;  Garnett  v.  Acton,  28  Beav.  333. 


3IO        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

to  B's  money,  that  equity  will  treat  as  money.  And  so  it  is  in  all 
other  cases  of  indirect  equitable  conversion. 

How  can  a  right  to  have  an  actual  conversion  made  be  created? 
In  two  ways,  namely,  either  by  a  contract  to  buy  or  to  sell  land, 
or  by  a  direction  to  another  person  to  do  so.  Of  such  contracts, 
there  are  more  than  the  one  species  already  mentioned,  though 
that  is  practically  the  only  one  that  is  bilateral,  and  is  believed 
to  be  absolutely  the  only  one  by  which  an  equitable  conversion 
is  created  both  of  land  into  money  and  of  money  into  land,  as 
well  as  the  only  one  in  which  an  agreement  to  buy  or  sell  land  is 
alone  sufficient  to  create  an  equitable  conversion.  Such  a  con- 
tract is  also  believed  to  furnish  the  only  instance  of  an  equitable 
conversion  which  is  always  coextensive  with  the  actual  conversion 
which  is  agreed  or  directed  to  be  made.  - 

As  no  right  can  cause  an  equitable  conversion  unless  it  can  be 
enforced  specifically,  and  as  a  bilateral  contract  for  the  sale  and 
purchase  of  land  cannot  be  enforced  specifically  at  the  suit  of 
either  party,  unless  it  can  be  so  enforced  at  the  suit  of  each  party, 
it  follows  that  such  a  contract  cannot  cause  an  equitable  conver- 
sion, either  of  land  into  money  or  of  money  into  land,  unless  each 
party  is  capable  of  performing  his  side  of  the  contract,  and  can  be 
compelled  to  do  so.  If,  therefore,  the  seller  cannot  make  such  a 
title  to  the  land  as  the  buyer  will  be  compelled  to  accept,  there 
will  be  no  equitable  conversion,^  unless  the  buyer  shall  choose  to 
accept  such  a  title  as  the  seller  can  make,  though,  if  the  buyer  so 
accept  the  seller's  title  as  to  prevent  his  afterwards  objecting  to 
its  insufficiency,  the  eft'ect  of  the  contract  will  henceforth  be  the 
same  as  if  the  title  had  been  good.  So,  if  either  party  shall  lose 
his  right  to  enforce  specific  performance  by  laches  or  delay,  the 
equitable  conversion  will  then  cease,  unless  the  other  party  shall 
choose  to  waive  the  defense  thus  opened  to  him.  Moreover,  if  a 
seller  be  unable  to  make  a  good  title,  and  the  buyer  die  before  the 
purchase  is  completed,  his  executor  may  prevent  a  specific  per- 
formance by  refusing  to  pay  the  purchase  money,  though  the 
buyer's  heir  or  devisee  may  wish  to  accept  such  a  title  as  the 
seller  can  make,  for  the  only  person  who  can  waive  a  defense  to  a 
claim  is  the  person  against  whom  the  claim  is  made,  and  here  that 
person  is  the  buyer's  executor,  for  it  is  he   who    must   pay  the 


1  Green  v.  Smith,  i  Atk.  572;  Broome  v.  Monck,  10  Ves.  597;  Thomas,  /«  re,  34 
Ch.  D.  166. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         311 

purchase  money.^  And  the  same  will,  of  course,  be  true  of  any 
other  defense  against  specific  performance  which  was  open  to  the 
buyer  when  he  died.  So,  if  the  seller  die  after  the  buyer  has  lost 
his  right  to  specific  performance  by  laches  or  delay,  the  seller's 
heir  or  devisee  may  prevent  specific  performance  by  refusing  to 
convey  the  land,  though  the  seller's  executor  will,  of  course,  wish 
specific  performance  to  be  enforced,  in  order  that  he  may  obtain 
the  purchase  money. 

If  a  buyer  die  before  the  purchase  is  completed,  and  his  right  to 
specific  performance  is  afterwards  lost  without  the  fault  of  his  heir 
or  devisee,  the  general  opinion  has  been  that  the  heir  or  devisee, 
though  he  cannot  have  the  land,  will  be  entitled  to  receive  the 
purchase  money  from  the  buyer's  executor.  Thus,  where  the 
contract  was  binding  on  th*  buyer,  but  a  power  of  rescission  was 
reserved  to  the  seller,  and  was  exercised  by  him  after  the  death  of 
the  buyer,  who  died  intestate,  it  was  held  that  the  heir  of  the 
latter,  though  he  could  not  have  the  land,  was  entitled  to  receive 
the  purchase  money  from  the  buyer's  executor.^  So  in  Whittaker 
V.  Whittaker,^  where  the  buyer,  after  making  the  contract  devised 
the  land  by  way  of  family  settlement,  the  plaintiff  being  the  first 
tenant  for  life,  but  the  buyer's  right  to  specific  performance  was 
lost  after  his  death,  owing  to  a  long-continued  uncertainty  as 
to  whether  he  had  left  sufficient  assets  to  enable  his  executor 
to  pay  for  the  land.  Sir  R.  P.  Arden,  M.  R.,  held  that  the  plaintiff, 
though  not  entitled  to  have  the  purchase  money  paid  over  to  him, 
was  entitled  to  have  it  invested  in  other  land,  to  be  settled  to  the 
same  uses  to  which  the  land  contracted  for  had  been  devised.  He 
rested  his  decision,  however,  not  upon  the  contract,  but  upon  the 
will,  and,  for  that  reason.  Lord  Eldon,  in  an  elaborate  judgment  in 
Broome  v.  Monck,*  while  approving  of  the  decision,  rejected  the 
ground  upon  which  it  was  rested.  So,  if  the  seller  die  before  the 
sale  is  completed,  and  his  right  to  specific  performance  is  after- 
wards lost  without  the  fault  of  his  executor,  the  general  opinion 


1  Langford  v.  Pitt,  2  P.  Wms.  629,  632  ;  Alleyn  v.  Alleyn,  Mos.  262  ;  Milner  v.  Mills, 
Mos.  123;  Garnett  v.  Acton,  28  Beav.  i^t,;  Hood  v.  Hood,  3  Jur.  N.  s.  684.  And, 
as  the  buyers  executor  must  pay  the  purchase  money  to  the  seller,  if  the  latter  be  also 
the  buyer's  heir,  he  may  keep  the  land  as  such  heir,  and  yet  compel  the  buyer's  execu- 
tor to  pay  him  the  purchase  money.  Oim  duo  jura  in  una  persona  concurriint,  aeqiium 
est  acsi  essent  in  diversis.     Coppin  v.  Coppin,  2  P.  Wms.  291. 

2  Hudson  V.  Cook,  L.  R.  13  Eq.  417. 
8  4Bro.  C.  C.  31. 

*  10  Ves.  597. 


312         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

has  been  that  the  latter,  though  he  cannot  recover  the  purchase 
money  from  the  buyer,  can  recover  the  land  from  the  seller's  heir 
or  devisee. 1  It  seems  impossible,  however,  to  reconcile  these 
views  with  any  principle.  Up  to  the  moment  of  his  death  the 
buyer  had  only  a  right  to  the  land,  and  that  was  on  condition  of 
his  paying  the  purchase  money  to  the  seller,  and  he  was  also 
under  an  obligation  to  pay  the  purchase  money  on  the  condition 
of  his  receiving  the  land ;  and,  on  his  death,  his  right  devolved  in 
equity  on  his  heir  or  devisee,  and  his  obligation  devolved  on  his 
executor.  It  is  assumed  that  the  seller  refuses  to  convey  the  land 
and  that  he  cannot  be  compelled  to  convey  it,  and  hence  that  the 
buyer's  executor  cannot  be  compelled  to  pay  the  money  to  the 
seller.  Therefore,  it  is  said,  he  must  pay  it  to  the  buyer's  heir  or 
devisee !  So  also  the  seller,  up  to  the  moment  of  his  death,  had 
only  a  right  to  receive  the  money,  and  that  was  on  condition  of 
his  conveying  the  land,  and  he  was  also  under  an  obligation  to 
convey  the  land  on  condition  of  his  receiving  the  money;  and, 
on  his  death,  both  his  right  and  his  obligation  devolved  at  law 
upon  his  executor,  though  his  obligation  devolved  also  in  equity, 
with  the  land,  upon  his  heir  or  devisee.  It  is  assumed  that  the 
buyer  refuses  to  pay  the  money,  and  that  he  cannot  be  compelled 
to  pay  it,  and  hence  that  the  seller's  heir  or  devisee  cannot  be 
compelled  to  convey  the  land  to  the  buyer.  Therefore,  it  is  said, 
he  must  convey  it  to  the  seller's  executor !  Could  there  be  two 
more  palpable  nonsequiturs?  A  (the  buyer's  heir  or  devisee)  files  \ 
a  bill  against  B  (the  buyer's  executor)  and  C  (the  seller)  to 
compel  B  to  pay  money  to  C,  and  to  compel  C  to  convey  land  to 
A.  A  is  wholly  defeated,  and  what  is  the  consequence?  That 
his  bill  is  dismissed  with  costs?  No;  that  his  bill  is  dismissed  as 
against  C,  but  that  a  decree  is  made  in  his  favor  against  B  that  he 
pay  the  money  directly  to  A.  Why?  For  no  other  reason  than 
that  it  has  been  found  that  he  is  not  bound  to  pay  it  to  C  So, 
again,  A  (the  seller's  executor)  files  a  bill  against  B  (the  seller's 
heir  or  devisee)  and  C  (the  buyer)  to  compel  B  to  convey  land 
to  C,  and  to  compel  C  to  pay  money  to  A.  A  is  wholly  defeated, 
but,  instead  of  his  bill's  being  dismissed  with  costs,  a  decree  is 
made  in  his  favor  against  B  that,  as  it  has  been  found  that  he 
is  not  bound  to  convey  the  land  to  C,  therefore  he  shall  convey 


1  In  Curre  v.  Bowyer,  5  Beav.  6,  note  (b),  where  the  seller  had  died,  and  the  buyer 
afterwards  lost  his  right  to  specific  performance,  Sir  John  Leach  held  that  the  seller's 
next  of  kin  were  entitled  to  the  land. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         313 

the  same  to  A  !  For  neither  of  these  concUisions,  however,  can 
any  more  than  two  reasons  be  given,  namely,  {ox  the  first,  that  the 
buyer's  heir  or  devisee  has,  without  his  fault,  been  disappointed  in 
his  expectation  of  getting  the  land,  and  that  the  seller  is  not 
entitled  to  the  money,  and,  for  the  second,  that  the  seller's  execu- 
tor has,  without  his  fault,  been  disappointed  in  his  expectation  of 
getting  the  money,  and  that  the  buyer's  heir  or  devisee  is  not  en- 
titled to  the  land  ;  and  none  of  these  reasons  are  good.  To  make 
the  first  and  third  of  any  value  it  must  appear  that  the  disappoint- 
ment was,  in  whole  or  in  part,  the  fault  of  the  buyer's  executor 
and  the  seller's  heir  or  devisee  respectively,  and  this  neither 
appears  nor  is  assumed.  As  to  the  second  and  fourth  reasons,  it 
would  be  sufficient  to  say  that  the  fact  of  A's  not  being  liable  to  B 
is  no  reason  for  saying  he  is  liable  to  C.  In  this  case,  however,  it 
is  possible  to  say  more;  for  the  non-liability  of  the  executor  of  tiie 
buyer  to  the  latter's  heir  or  devisee  is  a  much  clearer  proposition 
than  his  non-liability  to  the  seller,  for  his  liability  to  the  latter  lacks 
only  the  performance  of  a  condition,  while  he  is,  in  law,  a  total 
stranger  to  the  former.  So,  also,  the  non-liability  of  the  heir  or 
devisee  of  the  seller  to  the  latter's  executor  is  a  much  clearer 
proposition  than  his  non-liability  to  the  buyer's  heir  or  devisee,  for 
his  liability  to  the  latter  lacks  only  the  performance  of  a  condition, 
while  he  is,  in  law,  a  total  stranger  to  the  former. 

Upon  the  whole,  it  seems  clear,  on  principle,  that  the  executor 
of  a  buyer  of  land  is  bound,  as  such  executor,  only  by  his  testa- 
tor's contract  of  purchase,  and  that  such  contract  binds  hirn  to  do 
one  thing  only,  namely,  to  pay  the  purchase  money  to  the  seller, 
and  that  he  can  be  compelled  to  do  this  either  by  the  seller,  or 
by  the  heir  or  devisee  of  the  buyer,  —  by  the  latter,  because  the 
payment  is  necessary  to  enable  such  heir  or  devisee  to  obtain  the 
land ;  but  that  if,  in  a  given  case,  the  seller  is  not  entitled  to 
the  money,  the  executor  of  the  buyer  is  under  no  obligation  to 
pay  it  to  anyone,  but  is  entitled  to  keep  it  as  such  executor.  So 
it  seems  equally  clear  that  the  seller's  heir  or  devisee  is  bound  only 
to  convey  the  land  to  the  buyer,  and  that  he  can  be  compelled  to 
do  this  either  by  the  buyer,  or  by  the  seller's  executor,  —  by  the 
latter,  because  the  conveyance  is  necessary  to  enable  him  to  ob- 
tain the  money;  but  that  if,  in  a  given  case,  the  buyer  is  not 
entitled  to  the  land,  the  heir  or  devisee  of  the  seller  is  under  no 
obligation  to  convey  it  to  anyone  else,  but  is  entitled  to  keep  it. 

If,  in  case  of  the  death  of  the  buyer  before  the  purchase  is  com- 


314        ^    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

pleted,  it  be  doubtful  whether  he  has  left  sufficient  assets  to  enable 
his  executor  to  pay  for  the  land,  or  if,  in  a  suit  for  specific  per- 
formance, his  executor  shall  refuse  to  admit  sufficient  assets 
for  that  purpose,  his  heir  or  devisee  may  always  secure  the  land 
by  himself  advancing  the  purchase  money,  and  he  may  do  this 
with  a  certainty  of  being  reimbursed,  if  the  assets  left  by  the 
buyer  shall  turn  out  to  be  sufficient  to  .reimburse  him.^ 

A  contract  for  the  sale  and  purchase  of  land  has  always  been 
treated  by  the  courts  as  creating  an  equitable  conversion  in  favor 
of  the  seller  as  well  as  in  favor  of  the  buyer.  In  truth,  however, 
as  has  been  seen  in  a  previous  article,^  such  a  contract  works  a 
conversion  of  the  seller's  land  into  money  on  legal  principles,  and 
without  any  other  aid  from  equity  than  such  as  it  affords  by  en- 
forcing the  contract  specifically  against  the  seller's  heir  or  devisee. 
In  short,  the  right  of  the  seller  to  receive  the  purchase  money  in 
exchange  for  his  land  will  devolve  on  his  executor  by  operation 
of  law,  whereas,  in  order  to  create  an  equitable  conversion,  it 
must  so  devolve  in  equity  alone. 

There  is  another  species  of  bilateral  contract  which  has  been 
held,  in  a  few  cases,^  to  create  an  equitable  conversion  in  favor  of 
one  of  the  parties  to  it,  namely,  a  building  contract,  i.  e.,  a  con- 
tract between  a  land  owner  and  a  builder  for  the  erection  of  a 
building  by  the  latter  on  the  land  of  the  former.  In  case  of  the 
death  of  the  land  owner  before  the  building  is  erected,  his  heir  or 
devisee  will  alone  profit  from  the  performance  of  the  contract  by 
the  builder,  and,  therefore,  there  is  strong  reason  why  the  land 
owner's  right  to  such  performance  should  devolve  in  equity  with 
the  land  on  his  heir  or  devisee,  though  the  performance  must  be 
at  the  expense  of  his  executor,  for,  if  such  right  should  devolve, 
with  the  obligation  to  pay  its  price,  upon  the  executor,  the  con- 
tract would  be  certain  not  to  be  performed,  as  the  executor  would 
find  it  much  cheaper  to  buy  off  the  builder  than  to  pay  him  for 
performing  the  contract.  Still,  there  is  a  very  serious  obstacle  to 
be  removed  before  such  a  contract  can  work  an  equitable  con- 
version, namely,  the  refusal  of  equity  to  enforce  the  specific  per- 
formance of  the  contract.  Why  is  it,  then,  that  such  a  contract  is 
held  to  work  an  equitable   conversion?     Because  formerly,  and 

1  Per  Lord  Eldon,  in  Broome  v.  Monck,  lo  Ves.  597,  614-615. 

2  See  18  Harv.  L.  Rev.  \o,suf>ra,  p.  269. 

8  For  example,  in  Holt  v.  Holt,  2  Vern.  322,  and  per  Lord  Hardwicke  in  Rook  v. 
Worth,  I  Ves.  460,  461. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         3^5 

when  the  doctrine  was  settled,  equity  did  enforce  the  specific  per- 
formance of  building  contracts,  —  and  in  fact  it  never  refused  to  do 
so  till  since  the  time  of  Lord  Hardwicke ;  ^  and  the  doctrine  is  still 
adhered  to^  as  being  established  by  authority,  notwithstanding 
the  sine  qua  non  of  specific  performance  has  failed,  just  as  a  con- 
tract for  the  purchase  of  land  has  been  held  to  work  an  equitable 
conversion  in  favor  of  the  heir  or  devisee  of  the  buyer,  notwith- 
standing the  buyer's  right  to  specific  performance  has  been  lost, 
the  court  giving  the  money  to  the  heir  or  devisee  when  he  cannot 
have  the  land.  Is,  then,  the  doctrine  that  a  building  contract 
works  an  equitable  conversion  of  the  land  owner's  money  into 
land,  just  as  a  contract  for  the  purchase  of  land  does,  to  be 
deemed  erroneous  on  principle?  Yes,  unless  equity  shall  consent 
to  make  an  exception  in  favor  of  the  heir  or  devisee  of  a  deceased 
land  owner,  to  its  rule  that  a  building  contract  will  not  be  specifi- 
cally enforced,  —  which,  it  seems,  equity  might  do. 

The  only  other  species  of  contract  which  it  will  be  necessary  to 
notice,  as  causing  an  equitable  conversion,  differs  very  widely 
from  the  two  species  of  contract  already  considered,  it  being  the 
unilateral  covenant  often  found  in  English  marriage  settlements 
and  marriage  articles,  to  lay  out  a  given  sum  of  money  in  the 
purchase  of  land,  or  to  purchase  land  of  a  given  annual  value  and 
to  settle  the  land  so  purchased.  Such  a  covenant  is,  therefore, 
an  agreement  to  make  a  settlement,  the  reason  for  making  such  a 
covenant  instead  of  an  actual  settlement  commonly  being  that 
the  person  who  is  to  make  the  settlement  has  not  the  land  at  the 
time  of  the  marriage,  or  has  not  land  which  he  wishes,  or  is  in  a 
condition  to  settle.  The  reader  will  see,  at  once,  therefore,  how 
widely  such  a  covenant  differs  from  the  ordinary  agreement  for 
the  purchase  and  sale  of  land.  It  does,  indeed,  involve  a  pur- 
chase of  land,  and,  therefore,  an  agreement  for  purchase  and  sale 
of  land,  but  such  purchase  is  to  be  made  of  some  third  person, 
not  ascertained  at  the  date  of  the  covenant,  and,  of  course,  the 
agreement  to  purchase  must  be  made  with  the  same  person. 
What  is,  however,  of  much  greater  legal  importance  is  the  fact 
that  the  particular  land  to  be  purchased  is  wholly  unascertained, 
nothing,  in  fact,  being  fixed,  except  the  amount  of  money  thus  to 
be  laid  out,  or  the  annual  value  of  the  land  to  be  purchased. 
What  is  of  still  greater  legal  importance,  however,  is  the  fact  that 

1  See  Rayner  v.  Stone,  2  Eden  128. 

2  Cooper  z'.  Jarman,  L.  R.  3  Eq.  98  ;  Day,  hi  re,  [1898]  2  Ch.  510. 


3 1 6        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  vital  part  of  the  agreement  is  to  be  found,  not  in  the  covenant 
to  purchase  land,  but  in  the  covenant  .to  settle  the  land  when  pur- 
chased. Without  this  latter  branch,  indeed,  the  covenant  would 
not  constitute  a  contract  at  all,  for,  as  it  would  be  simply  a  cove- 
nant to  purchase  land  with  the  covenantor's  own  money,  the  land, 
when  purchased,  would  belong  absolutely  to  him,  and,  therefore, 
he  would  incur  no  obligation  to  make  the  purchase;  or,  to  ex- 
press the  same  thing  in  another  form,  without  the  covenant  to 
settle  the  land,  no  right  would  be  created  in  anyone  to  have  land 
purchased,  and,  therefore,  the  covenantor  could  neither  be  com- 
pelled to  make  the  purchase,  nor  to  pay  damages  for  not  doing 
so.  It  is,  therefore,  the  covenant  to  settle  the  land  which  requires 
particular  attention.  What  is  meant  by  a  settlement  of  land,  or 
by  settled  land?  The  phrases  "settled  estate"  and  "settled 
land  "  have  become  very  familiar  in  English  law  during  the  last 
half-century,  no  less  than  six  "  Leases  and  Sales  of  Settled 
Estates"  acts  having  been  passed  between  1856  and  1877,  both 
inclusive,^  and  no  less  than  five  "  Settled  Land "  acts  between 
1882  and  1890,  both  inclusive.^  Under  these  acts,  a  "settled 
estate  "  or  "  settled  land  "  is  declared  to  be  any  estate  or  land 
which  stands  limited  to  several  persons  in  succession.  The  most 
familiar  form  in  which  land  stands  so  limited  in  a  marriage  settle- 
ment is  that  of  a  limitation  to  the  use  of  the  intended  husband  for 
life,  remainder,  as  to  a  part  or  all  of  the  land,  to  the  use  of  the 
intended  wife  for  life,  by  way  of  jointure  and  in  lieu  of  dower,^ 
remainder  to  the  use  of  the  first  and  other  sons  of  the  marriage 
successively  in  tail,  or  in  tail  male,  remainder  to  the  use  of  the 
daughters  of  the  marriage  as  tenants  in  common  in  tail,  remainder 
to  the  use  of  the  intended  husband  in  fee.  Sometimes  the  first 
limitation  of  all  is  one  to  the  use  of  trustees  for  a  long  term  of 
years  in  trust  to  raise  a  certain  sum  annually,  during  the  coverture, 
for  the  wife  by  way  of  pin-money ;  and  generally  the  first  limita- 
tion after  the  death  of  the  husband  and  wife  is  to  trustees  for  a 
long  term  of  years  in  trust  to  raise  portions  for  daughters  and 
younger  sons  of  the  marriage,  in  the  event  of  there  being  a  son 


1  19  &  20  Vict.  c.  120,  1856;  21  &  22  Vict.  c.  77,  1858  ;  27  &  28  Vict.  c.  45,  1S64; 
37  &  38  Vict.  c.  33,  1874  ;  39  &  40  Vict.  c.  30,  1876 ;  and  40  &  41  Vict.  c.  18,  1877. 

2  45  &  46  Vict.  c.  38,  1882;  47  &  48  Vict.  c.  18,  1884;  50  &  51  Vict.  c.  30,  1S87  ; 
52  &  53  Vict.  c.  36,  1889;  and  53  &  54  Vict.  c.  69,  1890. 

8  Within  recent  times,  the  wife's  jointure  seems  to  be  generally  secured  by  limiting 
to  her,  not  an  estate  in  land  for  her  life,  but  a  rent  charge. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  317 

of  the  marriage  in  whom  the  first  estate  tail  shall  vest.  The  only 
thing,  however,  that  can  be  asserted  broadly  of  marriage  settle- 
ments is  that  they  have  for  their  object  the  making  of  a  provision 
for  the  wife  and  children  of  the  intended  marriage;  for,  within 
the  limits  which  that  object  prescribes,  the  limitations  in  such 
settlements  vary,  as  the  circumstances  and  the  views  of  the  par- 
ties vary.  It  follows,  therefore,  that  a  covenant  to  make  such  a 
settlement  must  state  the  limitations  to  be  made  with  the  same 
particularity  as  the  settlement  itself,  so  that  the  limitations  in  the 
settlement  will  be  a  mere  copy  of  those  in  the  covenant. 

Such  a  covenant  is  generally  made  by  the  intended  husband  or 
his  father,  and  is  made  with  relatives  or  friends  of  the  wife,  as 
trustees  for  the  wife  and  children,  and  it  generally  provides  that  the 
land  when  purchased  shall  be  conveyed  to  the  same  trustees  in 
fee,  and  to  the  several  uses  specified.  The  covenant  is  also 
generally  made  in  consideration  of  the  intended  marriage,  and 
of  a  sum  of  money,  paid  to  the  husband  or  settlor  by  the  wife's 
father,  as  the  wife's  marriage  portion- 
Assuming  the  limitations  to  be  such  as  have  been  already  stated, 
it  will  be  seen  that,  when  the  covenant,  and  consequently  the 
settlement,  is  made  by  the  intended  husband,  the  covenant  and 
settlement  do  not  extend  to  the  life  interest  limited  to  the  hus- 
band, nor  to  the  ultimate  fee  which  is  also  limited  to  him,  those 
limitations  being,  in  effect,  mere  reservations  by  the  husband  of  a 
portion  of  what  would  wholly  belong  to  him,  but  for  the  covenant 
and  settlement.  And  even  if  the  covenant  and  settlement  be 
made  by  the  husband's  father,  it  seems  that  so  much  of  the  cove- 
nant as  is  in  favor  of  the  husband  cannot  be  specifically  enforced, 
as  the  considerations  upon  which  the  covenant  is  made  extend  only 
to  the  wife  and  the  children  of  the  marriage.  Whether,  therefore, 
the  covenant  be  made  by  the  husband  or  not,  only  so  much  of  it 
as  is  in  favor  of  the  wife  and  children  of  the  marriage  creates  rights 
which  can  be  specifically  enforced.  In  the  first  instance,  more- 
over, it  is  only  in  favor  of  the  wife  that  such  a  covenant  creates  a 
right,  as  the  rights  which  it  creates  in  favor  of  children  will  come 
into  existence  only  as  children  are  from  time  to  time  born  ;  and,  if 
there  be  no  children  of  the  marriage,  the  obligation  created  by  the 
covenant  will  cease  on  the  death  of  the  wife,  if  the  husband  be  the 
covenantor,  and  will  cease,  in  any  event,  on  the  death  of  the  hus- 
band and  wife,  and  the  land,  if  purchased  and  settled,  will  thence- 
forth belong  wholly  to  the  settlor. 


31 8        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

Such,  then,  being  the  extent  and  nature  of  the  rights  created  by 
the  covenant  under  consideration,  what  is  the  extent  of  the  equi- 
table conversion  which  it  causes?  The  limitations  covenanted  to 
be  made  in  favor  of  the  husband  do  not,  it  seems,  cause  any  equi- 
table conversion,  even  when  the  covenant  is  not  made  by  him, 
there  being  no  consideration  for  the  covenant  so  far  as  it  is  in  his 
favor,  and,  therefore,  no  right  to  specific  performance.  There  is 
also  another  reason  why  the  right  of  the  husband,  as  well  as  that 
of  the  wife,  to  a  life  interest  can  practically  cause  no  equitable 
conversion,  namely,  that  it  expires  with  the  life  of  its  owner,  and 
hence  cannot  devolve  on  his  death.  The  only  rights,  therefore, 
created  by  such  a  covenant,  which  will  devolve  on  the  death  of 
their  owner,  and  which,  being  capable  of  being  specifically  en- 
forced, will  devolve  like  land,  are  those  created  in  favor  of  the  chil- 
dren of  the  marriage.  Moreover,  as  no  child  is  generally  entitled 
to  a  greater  estate  in  the  land  to  be  purchased  than  an  estate  tail, 
and  as  such  an  estate  expires  on  the  death  of  the  tenant  in  tail 
without  issue,  it  follows  that  the  interest  of  a  child  will  devolve  on 
his  death  only  when  he  leaves  issue.  It  must  also  be  borne  in 
mind  that  a  covenant  to  purchase  and  settle  land  will  cause  an 
equitable  conversion  only  so  long  as  the  covenant  remains  wholly 
unperformed,  for,  the  moment  that  the  land  is  purchased,  the  con- 
version before  covenanted  to  be  made  is  actually  made,  and  the 
interests  of  the  children  will  henceforth  be  land  for  all  purposes, 
and  without  invoking  the  aid  of  equitable  conversion.  It  will  be 
seen,  therefore,  that  the  interest  of  a  child  under  such  a  covenant 
can  devolve  as  land,  by  virtue  of  the  principle  of  equitable  con- 
version, only  when  the  covenant  remains  wholly  unperformed  until 
such  child  marries,  has  issue,  and  dies. 

As  it  is  not  the  right  to  have  land  purchased,  but  the  right  to 
have  it  settled,  that  causes  an  equitable  conversion,  of  course  it  is 
the  latter  right,  and  not  the  former,  that  measures  the  extent  of 
the  equitable  conversion  caused  by  a  covenant  to  purchase  and 
settle  land.  This  is,  in  fact,  no  more  than  saying  that,  on  the 
death,  intestate,  of  a  person  who  has  a  right  to  have  land  which  is 
to  be  purchased  conveyed  to  him  in  fee-simple,  such  right  will 
descend  to  his  heir,  and  hence  there  will  be  an  entire  equitable 
conversion  of  the  price  of  the  land  into  land  ;  and  that,  on  the 
death  of  a  person  entitled  to  have  land  which  is  to  be  purchased 
conveyed  to  him  in  fee-tail,  his  right  will  descend  to  his  issue  in 
tail,  if  he  leave  issue,  and  to  them  alone,  and  hence  there  will  be 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTIOX.         319 

an  equitable  conversion  of  the  price  of  the  land  into  land  for  so 
long  a  time  only  as  there  shall  continue  to  be  issue  of  the  deceased, 
while,  on  the  death  of  a  person  entitled  to  have  land,  which  is  to 
be  purchased,  conveyed  to  him  for  his  life,  no  right  whatever  will 
survive  the  deceased,  and  hence  there  will  be,  for  the  purposes  of 
devolution,  no  equitable  conversion  of  the  price  of  the  land  into 
land.  Yet,  in  each  of  the  three  cases  just  put,  the  right  of  the 
deceased  to  have  land  purchased  is  the  same,  namely,  to  have  a 
given  sum  of  money  laid  out  in  the  purchase  of  land  in  fee- 
simple,  or  to  have  the  fee-simple  of  land  of  a  given  annual  value 
purchased.  Why?  Because  it  is  of  such  land  that  the  deceased 
is  entitled  to  have  the  fee-simple,  or  a  fee-tail,  or  an  estate  for 
life,  conveyed  to  him.  If,  therefore,  in  marriage  articles  the  in- 
tended husband  covenant  to  purchase  and  settle  land,  in  the  man- 
ner before  stated,  while  there  may  be  an  indefinite  number  of 
persons,  each  of  whom  will  be  entitled  to  enforce  the  covenant 
specifically,  and  to  its  full  extent,  yet,  as  the  covenant  will  direct 
no  limitation  of  the  fee-simple  in  the  land  to  be  purchased,  there 
will  remain  in  the  husband,  in  every  event,  an  ultimate  reversionary 
interest  in  the  money  to  be  laid  out  in  land,  as  to  which  there  will 
be  no  equitable  conversion,  and,  if  the  covenant  be  performed,  a 
corresponding  interest  in  the  land  purchased  and  settled  will  re- 
main in  the  husband,  i.  c,  if  the  husband  purchase  the  land,  and 
convey  it  in  fee  to  the  trustees  of  the  settlement  to  the  several  uses 
directed  in  the  covenant,  the  last  of  those  uses  will  be  to  the  hus- 
band in  fee. 

After  what  has  been  said,  it  can  scarcely  oe  necessary  to  caution 
the  reader  against  entertaining  the  notion  that  a  single  covenant 
to  purchase  and  settle  land  can  cause  only  a  single  equitable 
conversion,  as  it  is  obvious  that  each  separate  right,  created  by 
such  a  covenant,  to  acquire  an  inheritable  interest  in  the  land  to 
be  purchased,  will  cause  an  equitable  conversion,  provided  the 
right  be  one  which  equity  will  enforce  specifically;  and  even 
though  the  right  be  to  acquire  only  an  estate  for  life,  there  will  in 
strictness  be  an  equitable  conversion  during  the  continuance  of 
that  estate,  though  it  will  not  be  likely  to  be  followed  by  any 
practical  consequence. 

Between  an  actual  conversion  and  an  indirect  equitable  conver- 
sion there  is  the  same  difference  as  between  an  absolute  right  and  a 
relative  right. ^     An  absolute  right  exists  for  all  purposes  and  as  to 

1  See  iupra,  page  307,  note. 


320        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

all  persons,  while  a  relative  right  implies  a  relation  between  two 
persons,  one  of  whom  has  the  right  against  the  other,  and  the 
other  of  whom  is  under  a  correlative  obligation  to  him  who  has 
the  right.  A  relative  right,  therefore,  as  such,  has  no  existence 
except  in  favor  of  the  person  who  has  it,  and  as  against  the  per- 
son who  is  subject  to  the  correlative  obligation.  So  also  an  actual 
conversion  is  made  in  the  exercise  of  an  absolute  right,  and  therefore 
it  exists  for  all  purposes  and  as  to  all  persons,  while  an  indirect  equi- 
table conversion  is  merely  an  equitable  consequence  of  a  relative 
right,  and  is,  therefore,  necessarily  subject  to  the  same  limitations 
as  the  right  of  which  it  is  a  consequence.  Such  an  equitable  con- 
version, therefore,  can  have  no  existence  except  as  to  the  person 
of  whose  right  it  is  a  consequence,  —  least  of  all  can  it  have  any 
existence  as  to  the  person  who  is  subject  to  the  correlative  ob- 
ligation. When,  therefore,  an  intended  husband,  for  example, 
covenants,  in  marriage  articles,  to  purchase  land,  and  settle  the 
same,  in  the  manner  before  stated,  such  covenant  will  create 
equitable  conversions  only  as  to  the  intended  wife  and  the  chil- 
dren of  the  marriage,  —  not  as  to  the  husband.  If,  therefore,  the 
husband  die  intestate  before  performing  the  covenant,  all  his  per- 
sonal property  will  devolve  upon  his  executor,  just  as  if  he  had 
made  no  such  covenant;  the  only  difference  will  be  that  the  obli- 
gation which  the  husband  incurred  by  making  the  covenant  will 
also  devolve  upon  his  executor.  In  other  words,  the  personal 
property  in  the  hands  of  the  executor  will  be  subject  to  the  bur- 
den of  the  covenant. 

Such  are  upon  principle,  as  it  is  conceived,  the  effects  produced 
by  the  covenant  now  under  consideration  in  respect  to  the  equi- 
table conversion  which  it  causes.  It  is  time,  however,  to  inform 
the  reader  that  a  very  different  view  is  presented  by  the  authorities; 
for  it  has  been  held,  from  the  earliest  times,  and  without  a  dis- 
senting voice,  first,  that  any  limitation  directed  by  such  a  cove- 
nant, which  confers  a  right  to  have  the  covenant  fully  performed, 
causes  an  equitable  conversion  into  land  of  the  entire  interest  in 
the  money  covenanted  to  be  laid  out  in  land,  though  the  limitation 
which  causes  the  conversion  be  only  for  life,  i.  e.,  that  the  equi- 
table conversion  is  measured  by  the  actual  conversion  which  the 
covenant  requires,  and  is  coextensive  with  it;  secondly,  that  every 
such  conversion  is  absolute,  not  relative,  or,  at  least,  that  the 
money  covenanted  to  be  laid  out  in  land  is  converted  in  equity 
into  land,  not  only  as  to  the  persons  in  whose  favor  the  land  to  be 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  321 

purchased  is  covenanted  to  be  limited,  but  also  as  to  the  covenan- 
tor; and  accordingly  it  is  held  that  a  covenant  by  an  intended  hus- 
band to  lay  out  money  in  the  purchase  of  land  and  to  settle  the 
land  in  the  manner  before  stated  will,  immediately  on  the  solemni- 
zation of  the  marriage,  cause  a  complete  equitable  conversion 
of  the  money  so  covenanted  to  be  laid  out,  not  only  as  to  the  wife 
and  the  children  of  the  marriage,  but  as  to  the  husband  also,  sub- 
ject only  to  the  condition  of  the  wife's  surviving  the  husband,  for 
the  limitation  covenanted  to  be  made  in  favor  of  the  wife  for  her 
life  will  give  her  an  undoubted  right  to  enforce  a  full  performance 
of  the  covenant. 

Thus,  in  Lingen  v.  Souroy,^  where  an  intended  husband  cove- 
nanted to  lay  out  an  identified  fund  of  ^^1400  in  the  purchase  of 
land,  and  to  settle  the  land  in  the  manner  just  stated,  and  there 
was  no  issue  of  the  marriage,  and  the  husband  died  without  having 
performed  the  covenant,  and  leaving  his  wife  surviving  him,  and 
having  devised  all  his  real  estate,  with  a  certain  exception,  to  his 
nephews,  and  bequeathed  all  his  personal  estate  to  his  wife,  whom 
he  also  appointed  his  executrix,  and  the  nephews  filed  a  bill 
against  the  wife,  claiming  the  ^^^1400  subject  to  the  wife's  life  in- 
terest therein,  Lord  Harcourt  made  a  decree  in  the  plaintiffs 
favor,  holding  that  the  ^^1400  passed  to  them  as  land,  under  the 
husband's  will,  by  virtue  of  the  words  "  all  my  other  lands  in  the 
city  and  county  of  York,  or  any.  other  part  of  Great  Britain";  and 
his  decree  was  affirmed  by  Lord  Cowper  on  a  rehearing.  The 
plaintiffs,  therefore,  accomplished  the  extraordinary  feat  of  re- 
covering against  the  testator's  wife  on  the  strength  of  a  riglit 
vested  in  her  by  the  covenant  to  have  the  ^1400  laid  out  in  land 
and  settled  on  her  for  life.  It  is  to  be  hoped  that  such  an  instance 
of  a  damnosa  haereditas  would  be  sought  for  in  vain  elsewhere 
than  in  Lingen  v.  Souroy  and  other  cases  ^  which  have  followed  its 
authority.  If  the  husband  had  died  intestate,  his  heir  would  have 
been  relieved  from  a  portion  of  the  burden  of  proof  which  rested 
upon  his  devisees,  for  the  latter  had  to  prove,  not  only  what  the 
heir  must  have  proved,  but  also  that  they  had  been  put  by  the  tes- 
tator in  the  place  of  the  heir,  and  it  seems  clear  that,  by  the  word 
"  lands,"  the  testator  meant  lands  of  which  locality  could  be  predi- 
cated, i.  c,  actual  land. 


1  I  p.  Wms.  172,  10  Mod.  39,  Gilb.  Eq.  Rep.  91,  Ch.  Prec.  400. 
*  For  example,  Walrond  v.  Rosslyn,  11  Ch.  D.  640. 
21 


322         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

In  Edwards  v.  Countess  of  Warwick  ^  an  intended  husband  cove- 
nanted that  i;  10,000,  being  a  part  of  the  intended  wife's  marriage 
portion,  and  which  was  to  be  deposited  by  the  wife's  father  in  the 
hands  of  trustees,  should  be  laid  out  by  the  latter  in  the  purchase 
of  land,  to  be  settled  on  the  husband  for  ninety-nine  years,  if  he 
should  live  so  long,  remainder  to  the  first  and  other  sons  of  the 
marriage  in  tail  male,  remainder  to  the  husband  in  fee.  The 
marriage  took  place,  and  the  husband  afterward  died,  leaving  a 
son  in  whom  the  first  limitation  in  tail  male  vested,  but  who  after- 
ward died  without  issue,  and  thereupon  all  the  limitations  cove- 
nanted to  be  made  of  the  land  to  be  purchased  with  the  ;^io,ooo 
were  exhausted,  and  the  money  had  never  been  laid  out.  It 
would  seem  plain,  therefore,  that  the  husband's  reversionary  inter- 
est in  the  i^i 0,000,  which  had  been  personal  property  from  the 
beginning,  and  which,  on  the  husband's  death,  had  devolved  on 
his  personal  representative,  for  the  benefit  of  his  wife  and  son, 
became  an  absolute  interest  on  the  death  of  the  son,  whose  share 
therein  devolved  upon  his  personal  representative  for  the  benefit 
of  his  mother  and  his  half-sister,  i.  e.,  his  mother's  daughter  by  a 
second  husband.  It  was  held,  however,  by  Lord  Macclesfield, 
that  this  reversionary  interest  was  converted  in  equity  into  land, 
and,  on  the  husband's  death,  descended  to  his  son  and  heir,  and, 
on  the  death  of  the  latter,  descended  to  his  heir,  namely,  the 
plaintiff's  wife,  who  was  his  father's  sister,  and  his  decision  was 
affirmed  by  the  House  of  Lords. 

In  Lechmere  v.  Earl  of  Carlisle, ^  the  facts  were  substan- 
tially the  same  as  in  Lingen  v.  Souroy,  except  that  the  intended 
wife's  jointure  was  by  way  of  a  rent-charge,  instead  of  a  life  estate, 
and  that  the  intended  husband  died  intestate.  The  bill  was  filed 
by  the  husband's  heir,  and  was  for  a  specific  performance  of  the 
husband's  covenant  to  lay  out  ;^30,000  in  the  purchase  of  land, 
and  to  settle  the  land  ;  and  a  decree  was  made  in  the  plaintiff's 
favor  by  Sir  Joseph  Jekyll,  M.R.,  — which  was  affirmed  by  Lord 
Talbot  on  appeal. 

In  one  respect  the  decisions  in  the  last  two  cases  are  even  less 
defensible  than  that  in  Lingen  v.  Souroy,  for  in  the  latter  there 
was  a  right  in  the  wife  to  have  the  covenant  specifically  per- 
formed, while  in  Edwards  v.  Countess  of  Warwick  and  Lechmere 
V.  Earl  of  Carlisle  there  was  no  such  right  in  anyone,  either  when 

1  2  P.  Wms.  171,  I  Bro.  P.  C,  Toml.  ed.,  207.  2  3  p.  Wms.  211, 


A    BRIEF  SURVEY  OF  EilUITY  JURISDICTION.         323 

the  bill  was  filed  or  at  anytime  afterward.  In  Edwards  v.  Countess 
of  Warwick  only  one  of  the  limitations  which  the  husband  cove- 
nanted that  his  trustees  should  make  ever  took  effect,  and  that 
expired  on  the  death  of  the  son  without  issue,  and  it  will,  there- 
fore, now  be  admitted  that  the  equitable  conversion  which  had 
once  existed  had  ceased  to  exist  before  the  bill  was  filed. ^  In 
Lechmere  v.  Earl  of  Carlisle  the  wife,  on  whose  marriage  the 
covenant  to  purchase  and  settle  land  was  made,  was  still  living, 
and  was  entitled  to  a  jointure,  but,  as  her  jointure  was  to  consist 
only  of  a  rent-charge,  she  would  not  be  entitled  to  any  estate  in 
the  land  to  be  purchased,  —  only  to  a  charge  thereon,  and,  there- 
fore, she  had  no  right  to  have  land  purchased  and  settled  ;  and, 
though  it  has  generally  been  supposed  that  such  a  right  would 
work  an  equitable  conversion,  and  was  expressly  so  held  in 
Walrond  v.  Rosslyn,^  yet  I  shall  endeavor  to  show  hereafter  that 
such  a  view  cannot  be  supported. 

In  Lingen  v.  Souroy,  Edwards  v.  Countess  of  Warwick,  and 
Lechmere  v.  Earl  of  Carlisle,  it  was  alike  held  that  there  was  an 
equitable  conversion  in  favor  of  the  husband's  heir  or  devisee, 
and,  therefore,  in  favor  of  the  husband  himself,  and  yet  the  hus- 
band's only  relation  to  the  covenant  which  was  assumed  to  have 
caused  an  equitable  conversion  was  that  of  covenantor  and  ob- 
ligor, he  having  no  right  whatever  under  the  covenant,  and  no 
rational  person  will  claim  that  a  covenant  can  work  an  equitable 
conversion,  except  by  virtue  of  a  right  or  rights  which  it  creates. 
It  was  also  necessarily  held  in  each  of  these  three  cases,  and  was 
expressly  held  in  Lechmere  v.  Earl  of  Carlisle,  that  the  husband's 
heir  or  devisee  could  maintain  a  suit  for  the  specific  performance 
of  the  covenant;  and  yet  it  was  not  possible  that  such  heir  or 
devisee  should,  as  such,  derive  any  right  of  action  whatever  from 
the  covenant.  It  was  also  necessarily  held  that  a  relative  right 
and  the  correlative  obligation^  could  coexist  in  and  devolve  from 
the  same  person,  —  a  thing  plainly  impossible. 

The  reader  will  also  bear  in  mind  that  the  true  question  in  each 
of  these  three  cases  was,  not  whether  the  money  in  question  had 
devolved  from  the  husband  upon  his  heir  or  devisee  as  if  it  were 

^  Walrond  v.  Rosslyn,  11  Ch.  D.  640.  "  To  keep  on  foot  the  notional  conversion 
of  money  into  land,  it  is  evident  there  must  be  a  right  in  someone  to  insist  upon  the 
actual  conversion."     Lewin  on  Trusts,  loth  ed.,  115S  (c.  xxxii). 

2  Supra. 

3  See  supra,  page  307,  note. 


324        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

land,  but  whether  a  right  to  have  the  money  laid  out  in  the  pur- 
chase of  land,  and  to  have  the  land  settled  as  stated  in  the 
covenant,  had  so  devolved;  and  if  the  court  had  taken  that  view, 
and  adhered  to  it  consistently,  it  could  not  have  made  the  decision 
that  it  did  make  in  either  of  these  cases,  for  it  could  not  have 
failed  to  see  that  no  such  right  could  devolve  from  the  husband,  as 
no  such  right  was  vested  in  him,  —  that  his  only  right  consisted  in 
the  ownership  of  the  money  in  question,  and  that  that  money 
could  not  possibly  devolve  from  the  husband  as  if  it  were  land  as 
a  consequence  of  the  specific  performance  of  the  covenant,  since 
such  specific  performance  would  necessarily  involve  a  transfer  of 
the  money  from  the  husband  to  the  seller  of  the  land,  and  that 
such  money  could  devolve  from  the  husband  as  if  it  were  land 
only  by  means  of  a  trust  created  by  equity  itself,  namely,  by  treat- 
ing the  personal  representative  of  the  husband  as  holding  the 
money  as  a  trustee  for  the  husband's  heir  or  devisee. 

By  way  of  showing  how  radical  were  the  mistakes  which  the 
Court  of  Chancery  was  capable  of  making  at  about  the  time  when 
the  three  cases  now  in  question  were  decided,  the  case  of  Chaplin 
V.  Horner^  may  be  referred  to,  where  an  intended  husband  cove- 
nanted in  a  marriage  settlement  to  lay  out  i^2000  in  the  purchase 
of  land  to  be  settled  on  himself  and  his  heirs,  and  after  his  death 
the  daughter  and  only  child  of  the  marriage  filed  a  bill,  as  her 
father's  heir,  against  her  mother,  as  his  administratrix,  for  a 
specific  performance  of  the  covenant,  and  Sir  Joseph  Jekyll,  M.  R., 
made  a  decree  in  her  favor;  and  yet  the  words  in  italics  were 
wholly  inoperative,  and  so  the  covenant  was  simply  that  the  hus- 
band would  lay  out  ^2000  of  his  own  money  in  the  purchase  of 
land,  and,  as  the  land,  like  the  money,  would  be  absolutely  his,  the 
covenant  was  a  mere  nullity. 

The  only  other  mode  in  which  an  owner  of  land  or  money  can 
cause  an  equitable  conversion  of  his  land  into  money  or  of  his 
money  into  land,  is  by  the  creation  of  a  trust  or  duty  to  sell  his 
land,  or  to  purchase  land  with  his  money.  Such  a  trust  may  be 
created  either  by  deed  or  other  act  inter  vivos,  or  by  will,  though 
it  is  nearly  always  done  by  will.  Instead  of  creating  a  trust,  how- 
ever, a  testator  may,  by  his  will,  simply  direct  a  conversion  to  be 
made,  i.e.,  he  may  confer  a  power  upon  his  executor  (I  say 
executor,  for  he  is  nearly  always  the  person  selected)  to  sell  his 

1  I  P.  Wms.  483. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         325 

land,  or  to  purchase  land  with  his  money,  at  the  same  time  mak- 
ing it  his  duty  to  exercise  the  power. ^  Why  does  the  creation  of 
such  a  trust  or  duty  cause  an  equitable  conversion?  P'or  the 
same  reason  that  a  contract  causes  an  equitable  conversion, 
namely,  that  equity  will  enforce  the  specific  performance  of  such 
trust  or  duty. 

When  such  a  trust  is  created  by  deed,  the  equitable  conversion 
takes  place  the  moment  that  the  deed  is  delivered;  when  such 
trust  or  duty  is  created  by  will,  the  equitable  conversion  takes 
place  the  moment  that  the  testator  dies,  i.  e.,  the  moment  that  the 
will  takes  efifect.  If,  however,  the  trust  or  the  duty  be  subject  to 
a  condition  precedent,  the  equitable  conversion  will  not  take 
place  until  the  deed  or  will  takes  effect,  nor  until  the  trust  or  duty 
becomes  absolute.  But  the  mere  fact  that  the  actual  conversion  is 
not  to  be  made  until  some  event  which  is  certain  to  happen  shall 
happen,  for  example,  until  such  a  person  shall  die,  will  not  affect 
the  time  when  the  equitable  conversion  will  take  place.  Why 
not?  Because  the  time  when  the  equitable  conversion  tak'es 
place  depends,  not  upon  the  time  when  the  trust  or  duty  is  to  be 
performed,  i.  e.,  when  the  specific  performance  of  it  may  be 
enforced,  but  upon  the  time  when  the  right  to  have  it  specifically 
performed  is  created.  It  is,  as  we  have  already  seen,  the  creation 
of  this  right  which  causes  an  equitable  conversion,  and  a  right 
may  exist  presently,  though  it  is  not  enforceable  until  a  future  day, 
just  as  a  debt  may  exist  presently,  though  it  be  not  payable  until 
a  future  day.  If  I  have  a  right  to-day  to  have  certain  land  sold  on 
the  death  of  A,  and  one  half  of  the  proceeds  of  the  sale  paid  to 
me,  my  right  will  be  less  valuable  during  A's  life  than  it  will 
be  after  his  death,  but  its  legal  nature  will  always  be  the  same, 
whether  A  be  alive  or  dead. 

When  it  is  said  that  such  a  trust  or  duty  as  has  been  described 
creates  an  equitable  conversion,  no  more  is  meant  than  that  it 
will  do  so  if  certain  other  things  concur.  We  have  already 
seen  that  a  covenant,  in  a  marriage  settlement  or  marriage  articles, 
to  lay  out  money  in  the  purchase  of  land  will  not  cause  an  equi- 
table conversion,  nor  even  create  a  contract,  without  the  addition 
of  a  covenant  to  settle  the  land  when  purchased ;  and  so  it  is  of  a 
trust  to  sell  or  purchase  land.  To  the  creation  of  a  trust  a  cestui 
que  trust  is  indispensable,  and  to  the  creation  of  a  duty  a  person  to 

^  See  13  Harv.  L.  Rev.  549. 


326        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

whom,  or  in  whose  favor,  the  duty  is  to  be  performed  is  indispen- 
sable. A  trust  or  duty,  therefore,  to  sell  land  must  be  followed  up 
with  some  disposition  of  the  proceeds  of  the  sale,  and  a  trust 
or  duty  to  buy  land  must  be  followed  up  with  some  disposition  of 
the  land  to  be  purchased  ;  otherwise  no  trust  or  duty,  still  less 
any  equitable  conversion,  will  be  created.  What  such  disposi- 
tion must  be  in  order  that  a  valid  and  binding  trust  or  duty  may 
be  created,  we  have  seen  in  a  previous  article  ;^  and  it  may  now  be 
added  that  any  disposition  which  will  be  sufficient  to  render  the 
trust  or  duty  valid  and  binding  will  also  be  sufficient  to  cause  an 
equitable  conversion.  What  will  be  the  extent  of  such  equitable 
conversion?  It  will  be  precisely  coextensive  with  the  disposition 
made  of  the  proceeds  of  the  sale,  or  of  the  land  to  be  purchased. 
Thus,  if  a  trust  or  duty  be  to  sell  land,  and  divide  the  proceeds  of 
the  sale  between  A  and  B,  the  entire  fee-simple  of  the  land  will  be 
converted  in  equity  into  money.  If  the  trust  or  duty  be  to  sell 
the  land,  and  pay  one  half  of  the  proceeds  of  the  sale  to  A,  the 
fee-simple  of  an  undivided  half  only  of  the  land  will  be  converted 
in  equity  into  money;  and  yet  the  entire  interest  in  the  land  must 
be  sold  in  order  to  ascertain  the  amount  to  be  paid  to  A.  While, 
however,  the  actual  conversion  will  thus  extend  to  the  entire  inter- 
est in  the  land,  the  trust  or  duty  will  extend  only  to  this  one  half 
of  the  proceeds  of  the  sale,  and  the  remaining  half  of  such  pro- 
ceeds will  belong  to  the  person  or  persons  to  whom  the  land 
belonged  when  the  sale  took  place,  and  to  whom  the  land  would 
still  belong  if  it  had  not  been  sold,  and  that,  too,  not  because  of 
any  equitable  conversion,  or  of  any  other  principle  of  equity,  but 
by  virtue  of  common  law  principles  alone,  just  as  the  entire  pro- 
ceeds of  the  sale  would  have  so  belonged  if  the  creator  of  the  trust 
or  duty  had  devised  the  land  to  trustees  upon  special  trusts,  and 
had  given  to  the  trustees  a  mere  authority  to  sell  the  land,  and  had 
made  no  disposition  of  the  proceeds  of  the  sale,  —  in  which  case 
such  proceeds  would  belong  at  law  to  the  trustees  to  whom  the 
land  belonged  when  the  sale  was  made,  and  would  be  held 
by  them  on  the  same  trusts  on  which  the  land  was  previously 
held. 

If,  on  the  other  hand,  the  trust  be  to  purchase  land,  and  convey 
the  same  to  A  and  B  in  fee,  it  seems  that  there  will  be  no  equi- 
table conversion  of  the  money  into   land,  as  A  and  B  can  each 

1  i8  Harv.  L.  Rev.  22, supra,  p.  281. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         32/ 

claim  one  half  of  the  money,  just  as  A  could  claim  all  the  money,^ 
if  the  trust  or  duty  had  been  to  purchase  land  and  convey  it  to 
him  in  fee,  but  if  the  trust  be  to  purchase  land,  and  convey  the 
same  to  A  for  life,  remainder  to  B  in  tail,  remainder  to  C  in  fee, 
there  will  be  a  conversion  in  equity  of  the  entire  interest  in  the 
money  into  land. 

In  truth,  the  medium  through  which  an  indirect  equitable  conver- 
sion is  made,  whether  it  be  a  contract,  a  trust,  or  a  duty,  always  con- 
stitutes the  first  step  towards  an  alienation  of  the  thing  to  be 
converted,  and  an  acquisition,  by  the  alienor  or  someone  else,  of 
the  thing  into  which  the  conversion  is  to  be  made.^  Moreover,  this 
first  step,  while  it  does  not  in  law  or  in  fact  complete  either  the 
alienation  of  the  one  thing  or  the  acquisition  of  the  other,  yet  it 
does  do  both  in  equity  in  a  qualified  sense,  and  it  is  for  that  reason 
that  it  is  said  to  cause  an  equitable  conversion.  For  that  pur- 
pose, however,  the  contract,  trust,  or  duty  must  be  binding  and 
irrevocable,  and  must  also  be  capable  of  being  specifically  enforced 
in  equity. 

If  the  equitable  conversion  be  caused  by  a  mutually  binding 
bilateral  contract  for  the  purchase  and  sale  of  land,  the  contract 
constitutes  the  first  step  by  the  seller  towards  the  alienation  of  the 
land,  and  the  acquisition  of  money  instead,  and  the  first  step  by 
the  buyer  towards  the  alienation  of  his  money  and  the  acquisition 
of  land  instead,  and  the  contract  is  said  to  cause  an  equitable 
conversion  both  by  the  seller  and  the  buyer,  because  equity  looks 
upon  the  seller  as  having  already  parted  with  his  land,  he  having 
incurred  an  obligation  to  part  with  it  which  equity  will  specifically 
enforce,  and  because  equity  looks  upon  the  buyer  as  having,  for 
similar  reasons,  already  parted  with  his  money,  but  chiefly  be- 
cause the  seller  has  acquired  by  the  contract  a  legal  right  to  have 
the  money  paid  to  him  on  his  conveying  the  land,  and  the  buyer 
has  acquired  a  legal  right  to  have  the  land  conveyed  to  him  on 
his  paying  the  money,  both  of  which  rights,  being  specifically  en- 
forceable, devolve  in  equity,  the  one  as  if  it  were  money  and  the 
other  as  if  it  were  land.  If,  on  the  other  hand,  the  equitable 
conversion  be  caused  by  an  unilateral  covenant  to  purchase  and 

^  Seeley  v.  Jago,  i  P.  Wms.  3S9.  In  the  converse  case,  however,  of  a  trust  to  sell 
land,  and  divide  the  proceeds  of  the  sale  among  several  persons,  any  one  of  the  per- 
sons interested  may  insist  uDon  a  sale  against  the  wishes  of  all  the  others.  Deeth  v. 
Hale,  2  Mol.  3:7  ;  Trower  v.  Knightley,  6  Madd.  134. 

2  See  sufra,  page  307. 


328        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

settle  land  upon  the  covenantor's  wife  and  the  issue  of  the  mar- 
riage, such  covenant  will  constitute  the  first  step  towards  an 
alienation  by  the  covenantor  of  the  money  to  be  laid  out  by  him, 
and  towards  the  acquisition,  not  by  the  covenantor,  but  by  his  wife 
and  issue,  of  the  land  to  be  purchased.  How  are  the  wife  and 
issue  to  acquire  the  land?  Of  course,  they  are  to  acquire  it 
through  the  covenant  to  settle  it  upon  them;  and  hence  it  is  that 
the  latter  covenant  is  indispensable  to  the  equitable  conversion; 
and  hence  it  is,  also,  that  the  covenant  to  purchase  and  settle  land 
causes  an  equitable  conversion  only  to  the  extent  of  the  right  or 
rights  which  it  creates  to  have  the  land  settled.  To  that  extent, 
however,  a  covenant  to  purchase  and  settle  land  constitutes  a 
complete  step  towards  the  alienation  of  the  money  by  the  cove- 
nantor and  the  acquisition  of  the  land  by  the  wife  and  issue,  and 
hence,  to  that  extent,  it  causes  an  equitable  conversion  of  the 
money  into  land.  The  reader  will  observe,  however,  that,  under  a 
covenant  to  purchase  and  settle  land,  a  question  always  arises  as 
to  the  extent  of  the  equitable  conversion  which  the  covenant 
causes,  while,  under  a  contract  for  the  purchase  and  sale  of  land, 
no  such  question  can  ever  arise,  a  conversion  in  equity  of  the  en- 
tire interest  in  both  the  money  and  the  land  being  a  necessary 
consequence  of  the  contract. 

Finally,  if  the  equitable  conversion  be  caused  by  a  trust  or  duty 
to  convert  land  into  money,  or  money  into  land,  such  trust  or  duty, 
each  being  unilateral,  will  constitute  the  first  step  towards  the 
alienation  by  the  creator  of  the  trust  or  duty,  of  the  thing  to  be 
converted,  and  also  the  first  step  towards  the  acquisition,  not  by 
the  creator  of  the  trust  or  duty,  but  by  the  cestui  que  trust,  or  the 
person  for  whom,  or  in  whose  favor,  the  duty  is  to  be  performed, 
of  the  thing  into  which  the  conversion  is  to  be  made,  or  of  some 
interest  in  it.  How,  then,  is  such  an  acquisition  to  be  made? 
Only  by  means  of  a  gift  from  the  creator  of  the  trust  or  duty,  and 
this  is  another  reason  why  some  gift  by  the  creator  of  the  trust  or 
duty  of  the  thing  into  which  the  conversion  is  to  be  made,  is  in- 
dispensable to  the  equitable  conversion,  and  also  why  the  equi- 
table conversion  can  be  coextensive  only  with  such  gift.  To  the 
extent  of  such  gift,  however,  the  trust  or  duty  to  convert  land  into 
money,  or  money  into  land,  constitutes  a  complete  step  towards 
an  alienation  of  the  thing  to  be  converted,  and  an  acquisition  of  the 
thing  into  which  the  conversion  is  to  be  made ;  and  hence,  to  that 
extent,  it  necessarily  causes  an  equitable  conversion  of  land  into 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         329 

money,  or  of  money  into  land.  In  this  case  also,  as  in  that  of  a 
covenant  to  purchase  and  settle  land,  a  question  always  arises  as 
to  the  extent  of  the  equitable  conversion  caused  by  the  trust  or 
duty. 

We  have  seen  that  an  unilateral  covenant  to  purchase  and  settle 
land  can,  upon  principle,  cause  an  equitable  conversion  only  in 
favor  of  persons  on  whom  the  land  is  covenanted  to  be  settled,  — 
not  in  favor  of  the  covenantor,  or  those  claiming  under  him.  So 
also,  and  for  the  same  reason,  an  unilateral  trust  or  duty  to  convert 
land  into  money,  or  money  into  land,  can,  upon  principle,  cause 
an  equitable  conversion  only  in  favor  of  the  cestui  que  trust,  or 
the  person  for  whom,  or  in  whose  favor,  the  duty  is  to  be  per- 
formed,—  not  in  favor  of  the  creator  of  the  trust  or  duty,  or  of 
those  claiming  under  him.  We  have  also  seen,  however,  that,  in 
respect  to  a  covenant  to  purchase  and  settle  land,  the  authorities 
do  not  at  all  support  this  view,  but  hold  that  every  covenant  to  lay 
out  money  in  the  purchase  of  land,  and  to  settle  the  land,  causes 
an  equitr.ble  conversion  of  the  money  into  land  as  much  in  favor 
of  the  covenantor  and  those  claiming  under  him,  as  it  does  in 
favor  of  those  on  whom  the  land  is  covenanted  to  be  settled  and 
those  claiming  under  them;  and  it  may  now  be  added  that  the 
authorities  present  the  same  view  in  respect  to  equitable  conver- 
sions caused  by  a  trust  or  duty  to  convert  land  into  money,  or 
money  into  land.-^ 

We  have  also  seen  that  according  to  the  authorities  the  extent 
of  the  equitable  conversion  caused  by  a  covenant  to  purchase  and 
settle  land  is  measured,  not  by  the  extent  of  the  right  or  rights 
which  the  covenant  creates  in  the  land  to  be  purchased,  but  by  the 
extent  of  the  actual  conversion  which  the  covenant  makes  neces- 
sary. How  do  the  authorities  answer  this  question  in  respect  to 
an  equitable  conversion  caused  by  a  trust  or  duty  to  convert  lanct 
into  money,  or  money  into  land?  Or,  rather,  how  do  they  answer 
it  in  respect  to  such  a  trust  or  duty  created  by  a  will,  for  in 
respect  to  a  trust  created  by  deed  they  do  not  answer  it  at  all. 


1  Smith  V.  Claxton,  4  Madd.  484  (second  devise) ;  Jessopp  v.  Watson,  i  Mvl.  & 
K.  665;  Hatfield  v.  Pryme,  2  Coll.  204 ;  Clarke  v.  Franklin,  4  Kay  &  J.  257  ;  Richer- 
son,  In  re,  [1892]  i  Ch,  379. 


ARTICLE     XIV.' 


Equitable  Conversion. 

IV. 

PREVIOUS  to  the  case  of  Ackroyd  v.  Smithson,^  it  was  held 
that  an  unquaHfied  direction  by  a  testator  in  his  will  to  sell 
land,  or  to  buy  land  with  his  money,  created  a  complete  conver- 
sion in  equity  of  the  land  into  money,  or  of  the  money  into  land, 
and  that  this  conversion  was  effective  for  all  the  purposes  of  devo- 
lution at  the  testator's  death,  so  that  land  thus  converted  would 
devolve  in  equity  as  if  it  were  money,  i.  e.,  would  go  to  the  execu- 
tor, in  whose  hands  it  would  be  money  for  all  ptfrposes,  for  ex- 
ample, for  the  payment  of  debts  and  legacies,  and  for  distribution 
among  the  testator's  next  of  kin ;  and  so  that  money  thus  con- 
verted would  devolve  in  equity  as  if  it  were  land,  i.e.,  would  pass 
as  land  to  the  testator's  devisee,  or  descend  to  his  heir,  —  so  that 
it  would  neither  be  assets  for  payment  of  debts,  nor  liable  for 
legacies,  and  the  testator's  next  of  kin  would  have  no  claim 
upon  it. 

Upon  what  theory  was  it,  then,  that  this  equitable  conversion 
by  will  of  land  into  money  or  money  into  land  was  held  to  have 
the  effect  of  causing  land  to  devolve  in  equity  at  the  testator's 
death  as  if  it  were  money,  and  money  as  if  it  were  land?  It  is 
plain,  and  always  was  plain,  that  a  will  can  produce  no  effect  till  the 
testator's  death,^     If,  then,  a  testator  devise  his  land  to  trustees 

1  19  Harv.  L.  Rev.  i.  2  i  Bro.  C.  C.  503. 

8  In  Beauclerk  v.  Mead,  2  Atk.  167,  a  testator  by  his  will  devised  his  land,  in  the 
events  which  happened,  to  his  sister  for  life,  remainder  to  A  for  life,  remainder  to  B 
for  life,  and  he  also  directed  the  residue  of  his  personal  estate  to  be  laid  out  in  pur- 
chase of  land  to  be  settled  to  the  same  uses  to  which  his  land  was  devised.     By  a 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         33  ^ 

in  trust  to  be  sold,  but  fail  to  make  an  effective  disposition  of  all 
the  proceeds  of  the  sale,  what  will  happen  at  his  death?  Why, 
the  trustees  will  acquire,  under  the  will,  the  legal  ownership  of  the 
land,  while  each  person  to  whom  any  portion  of  the  produce  of 
the  land  is  given  will  acquire  an  equitable  right  to  have  the  land 
sold,  and  his  share  of  the  proceeds  paid  to  him,  as  well  as,  inci- 
dentally, a  right  to  receive,  until  the  sale  is  made,  the  rents  and 
profits  of  so  much  of  the  land  as  his  share  of  the  proceeds  of  the 
sale  shall  represent.  On  the  other  hand,  so  much  of  the  land  as 
shall  be  represented  by  the  undisposed  of  proceeds  of  its  sale, 
will  descend  in  equity  to  the  heir,  and,  when  his  title  to  the  land 
shall  be  devested  by  a  sale,  he  will  be  entitled  to  receive  in  ex- 
change a  like  proportion  of  the  proceeds  of  the  sale.  The  per- 
sonal representative  will,  therefore,  have  no  more  to  do  with  the 
testator's  land,  or  with  the  proceeds  of  its  sale,  than  he  would  have 
had  to  do  with  the  land  if  the  testator  had  died  intestate.  All 
this,  moreover,  is  so  plain  that  it  seems  that  the  courts  must  have 
proceeded  upon  some  other  theory  in  holding  the  contrary. 

Can  they  have  proceeded  upon  the  theory  that,  as  a  testator 
can  dispose  by  his  will  of  the  proceeds  of  a  sale  of  land  which  he 
directs  by  the  same  will,  so  such  proceeds,  if  undisposed  of,  will 
devolve  upon  his  personal  representative?  No,  clearly  not,  or  at 
least  no  such  theory  can  be  maintained ;  for  such  proceeds  have 
no  existence  till  after  the  testator's  death,  nor  till  after  a  sale  is 
actually  made,  and  it  is  only  the  property  and  rights  of  a  person 
which  are  in  actual  existence  that  can  devolve  at  his  death  on  his 

codicil  he  directed  that,  on  the  death  of  his  sister,  his  land  should  go,  in  the  events 
which  happened,  not  to  A  and  B  successively  for  life,  but  to  them  jointly  for  their 
lives;  and,  the  question  being  whether  the  word  "land,"  in  the  codicil,  included  the 
residue  of  the  testator's  personal  estate,  that  being  land  in  equity  when  the  codicil  was 
made,  Lord  Hardwicke  answered  that  it  did  not,  and  that  it  meant  the  same  in  the 
codicil  that  it  did  in  the  will,  the  residue  of  the  personal  estate,  not,  in  truth,  becom- 
ing land  in  equity  till  the  testator's  death.  He  said  (page  169) :  "  It  has  been  insisted 
on  for  the  plaintiff  that  if  a  man  makes  a  will  and  disposes  of  lands,  that  such  devise 
will  pass,  not  only  what  the  law  will  pass,  but  what  equity  passes  likewise,  which  is 
money  directed  to  be  laid  out  in  land.  ...  I  allow  that  the  rule  laid  down  by  the 
bar,  that  money  directed  to  be  invested  in  land,  must  be  considered  as  land,  is  very 
right,  but  then  it  is  truly  said  the  will  must  be  complete,  for  it  is  ambulatory  till  the 
testator's  death,  nor  till  then  can  it  be  considered  as  land  ;  for  would  not  his  personal 
estate  have  been  subject  to  all  intents  and  purposes  to  his  debts,  supposing  there  had 
been  any,  notwithstanding  the  devise  that  the  surplus  should  be  invested  in  land? 
Suppose  the  testator  had  given,  by  his  codicil,  all  his  lands  to  another  person,  and 
his  heirs,  can  anybody  doubt  whether  this  would  not  have  made  a  total  variation  as  to 
the  devisees  under  the  will.'" 


332         A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

representatives  by  operation  of  law.  When  a  testator  by  his  will 
makes  a  gift  of  such  proceeds,  the  gift  is  future  and  executory, 
and  there  is  in  devolutions  of  property  by  operation  of  law 
nothing  analogous  to  future  and  executory  gifts. 

What  other  theory  is  there,  then,  which  the  courts  may  have 
adopted?     In  framing  the  question  with  which  the  last  paragraph 
but  one  begins,  I  have  used  the  words  "  causing  the  land  to  de- 
volve in  equity,"  etc.,  and  I  have  used  these  words  because,  first, 
the  equitable  interest  in  the  land  is  the  only  thing  that  can  devolve 
by  operation  of  law  in  the  case  supposed;  secondly,  the  equitable 
interest  in  the  land  is  the  thing  that  was  in  fact  held  to  devolve  as 
if  it  were  money;   thirdly,  there  are  only  two  possible  alternatives, 
as  the  land  must  either  descend   as  land   to  the  heir,  or  it   must 
devolve  as  money  upon  the  personal  representative  ;   and,  as  it  was 
held  to  do  the  latter,  and  as  it  could  so  devolve  on  the  supposition 
that  it  had  been  directly  converted  by  equity  into  money,  and  on 
that  supposition   alone,   it  seems   that   that  must   have   been  the 
theory  upon  which  the  courts  acted.     In  other  words,  while  an  in- 
direct equitable  conversion  is  in  truth  only  a  first  step  towards  an 
alienation  of  the  thing  to  be  converted,  and  a  specific  performance 
of  the  contract  or  trust  which  causes  the  conversion  is  indispen- 
sable to  complete  the  alienation,  the  courts  acted  upon  the  theory 
that  such  a  conversion  constituted  in  itself,  at  the  testator's  death, 
a  complete  alienation  in  equity  of  the  thing  to  be  converted  from 
the  testator's  heir  to  his   executor,  and  from  his  executor  to  his 
heir,  and  hence  that  such  a  conversion  of  land  was  a  conversion 
of  it,  not  only  as  to  the  executor,  but  as  to  the  heir  as  well,  and 
that  such    a   conversion   of   money   was    a    conversion  of   it,   not 
only  as  to  the  heir,  but  as  to  the  executor  as  well.     In  short,  it 
was  held  that  an  indirect  conversion,  made  by  will,  was  an  abso- 
lute conversion,  in  so  far  as  it  is  possible  for  equity  to  make  an 
absolute  conversion,  that  land  so  converted  became  the  absolute 
property  of  the  testator's  executor,  in  so  far  as  it  is  possible  for  an 
equitable  owner  to  be  an  absolute  owner,  and  that  money  so  con- 
verted  became   the  absolute    property    of  the  testator's  heir   or 
devisee,  in  so  far  as  it  is  possible  for  an  equitable  owner  to  be  an 
absolute  owner.^ 

It  must  not  be  supposed,  however,  that  courts  of  equity  in  thus 
treating  indirect  equitable  conversions  as  if  they  were  direct,  acted 

1  See  infra,  p.  343 ;  p.  349,  n.  6. 


A   BRIEF  SURVEY  OF  E(2UITY  JURISDICTION.         333 

consciously;  for  in  truth  they  have  never  recognized  the  division 
of  equitable  conversions  into  such  as  are  direct  and  such  as  are 
indirect,  but  have  always  assumed  that  all  equitable  conversions 
constituted  one  class  only,  and  have  never  raised  any  question 
as  to  whether  they  are  made  directly  or  indirectly;  and  hence 
they  have,  not  unnaturally,  assumed  that  the  effects  produced  by 
any  equitable  conversion  will  be  produced  by  every  equitable  con- 
version, and  that  whatever  is  true  of  any  equitable  conversion  is 
true  of  all  equitable  conversions.  Hence,  too,  the  courts,  when 
dealing  with  an  equitable  conversion  of  one  kind,  have  applied  to 
it  a  mode  of  reasoning  which  is  applicable  to  equitable  conversions 
of  that  kind  or  which  is  applicable  only  to  equitable  conversions 
of  the  other  kind,  according  as  the  one  mode  of  reasoning  or  the 
other  best  supported  the  view  which  they  were  seeking  to  establish. 
More  particularly,  however,  and  for  reasons  stated  in  a  previous 
article,!  they  have  been  in  the  constant  habit  of  applying  to  in- 
direct conversions  reasoning  which  is  applicable  only  to  direct 
conversions. 

What  were  the  authorities  by  which  the  foregoing  view  was 
supposed  to  be  established?  First,  there  were  the  two  cases  of 
Mallabar  v.  Mallabar-  and  Durour  v.  Motteux,^  in  each  of  which 
the  decision  must  have  been  in  favor  of  the  next  of  kin,  but  for 
the  fact  that  there  was  a  residuary  bequest  which  was  held  to 
carry  everything.  There  was  also  the  case  of  Ogle  v.  Cook,* 
which  was  supposed  by  everyone  to  contain  an  actual  decision  in 
favor  of  the  next  of  kin  and  against  the  heir,  until  Lord  Lough- 
borough, fifteen  years  after  Ackroyd  v.  Smithson  was  decided, 
declared,''"  as  the  result  of  an  examination  of  the  Registrar's  Book, 
that,  though  the  point  was  involved,  it  was  not  actually  decided 
by  the  decree  which  was  made,  but  was  reserved  for  further  con- 
sideration. Lastly,  there  was  the  case  of  Fletcher  v.  Chapman,^ 
which  was  the  converse  of  Ackroyd  v.  Smithson,  i.  e.,  the  testator 
had  directed  money  to  be  laid  out  in  the  purchase  of  land,  but  he 
had  disposed  of  a  life  interest  only  in  the  land  to  be  purchased, 
and  (according  to  Tomlin's  head  note)  it  was  held  by  Lord 
Somers,  whose  decree  was  affirmed  by  the  House  of  Lords,  that 
the  testator's  heir  was  entitled  to  the  money,  subject  to  the  life 
interest.     Lord  Cottenham,  however,  when  Master  of  the  Rolls, 

1  Supra,  p.  307,  308.  2  Cas.  t.  Talbot,  78. 

8  I  Ves.  320,  I  Sim.  &  St.  292,  n.  (d).  *  i  Ves.  177. 

°  Collins  V.  Wakeman,  2  Ves.  Jun.  683,  *  3  Bro.  P.  C,  Tomlin's  ed.,  i. 


334         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

concluded,  after  a  careful  examination  of  the  case,  that  the  point 
was  not  involved,  and  hence  that  the  decision  did  not  preclude 
him  from  deciding  the  point  as  he  thought  right.^  On  the  other 
hand,  Digby  v.  Legard,^  which  was  the  latest  case  cited  in  Ackroyd 
V.  Smithson,  having  been  decided  within  six  years,^  was  thought 
to  be  a  very  strong  authority  in  favor  of  the  heir  and  against  the 
next  of  kin,  and  to  be  entitled  to  great  weight.  It  had  not,  how- 
ever, been  reported  when  Ackroyd  v.  Smithson  was  argued  and 
decided,  nor  was  there  then  any  statement  of  it  in  print.  There 
was,  indeed,  a  statement  of  it  by  Sir  T.  Sewell,  M.  R.,  in  the  then 
unreported  case  of  Fletcher  v.  Ashburner,*  and  from  that  state- 
ment it  was  cited  in  Ackroyd  v.  Smithson.  According  to  that 
statement,  however,  real  estate  only  was  devised,  and  hence  the 
case  was  cited,  in  Ackroyd  v.  Smithson,  as  one  which  did  not 
involve  the  blending  of  real  and  personal  estate  into  one  fund. 
When,  however,  it  came  to  be  reported,  first  by  Mr.  Cox,  in  his 
note  to  Cruse  v.  Barley  ^  and  afterwards  in  Dickens,^  it  appeared 
that  it  did  involve  the  element  of  blending;  and  therefore,  in 
that  respect,  it  was  precisely  in  point  for  the  heir  in  Ackroyd  v. 
Smithson,  though  it  had  been  supposed  not  to  be  so.  For  another 
reason,  however,  the  report  in  Dickens  shows  that  the  decision 
was  not  any  authority  in  favor  of  the  heir,  or  against  the  next  of 
kin,  in  Ackroyd  v.  Smithson  ;  for  it  appears  that  the  reason  of 
the  decision  in  favor  of  the  heir  was  that  the  land  was  merely 
charged  with  the  payment  of  the  testator's  debts  and  legacies 
in  aid  of  the  personal  estate,  and  that  no  more  of  the  land  was 
directed  or  authorized  to  be  sold  than  should  be  necessary  to 
satisfy  the  charge.  The  case  of  Emblyn  v.  Freeman"  was  also 
cited  in  Ackroyd  v.  Smithson  as  an  authority  in  favor  of  the  heir. 
The  facts  of  that  case,  however,  are  not  such  as  to  render  the 
decision  in  favor  of  the  heir  of  much  value.^ 

1  This  opinion  was  expressed  by  Sir  C.  C.  Pepys  (afterward  Lord  Cottenham)  in 
his  judgment  in  Cogan  v.  Stephens,  decided  Nov.  24,  1S36.  The  judgment  is  given 
in  full  in  an  appendix  to  the  first  three  editions  of  Lewin  on  Trusts.  The  case  is  also 
reported  in  5  L.  J.  N.  s.  Chan    17. 

2  -J  p.  Wms.  22,  n.  I ;  2  Dick.  500. 

3  Digby  V.  Legard  was  decided  in  June,  1774,  and  Ackroyd  v.  Smithson  in  June, 
1780. 

4  I  Bro.  C.  C.  497,  501. 

6  3  P.  Wnis.,  4th  ed.,  22,  n.  i,  published  in  17S7.  Fletcher  v.  Ashburner  was  de- 
cided just  a  year  before  Ackroyd  v.  Smithson.  Both  cases  were  first  reported  by 
Brown  in  his  second  edition,  jjublished  in   1790. 

•>  2  Dick.  500.     Dickens  was  published  in  1S03. 

^  Ch.  Free.  541.  »  Supra,  p.  2S6. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         335 

Such,  then,  arc  the  authorities  in  support  of  the  view  which,  I 
have  said,  prevailed  prior  to  Ackroyd  v.  Smithson  ;  and,  though 
they  are,  upon  the  whole,  stronger  than  they  were  supposed  to  be 
when  Ackroyd  v.  Smithson  was  decided,  they  can  hardly  be  said 
to  be  decisive.  Whether  decisive  or  not,  however,  the  opinion  has 
been  universal,  since  Ackroyd  v.  Smithson  was  decided,  that,  prior 
to  that  date,  the  law  was  as  I  have  stated  it  to  be. 

What,  then,  was  the  change  introduced  by  Ackroyd  v.  Smithson? 
The  testator,  in  that  case,  by  his  will  gave  all  his  land,  not  therein 
before  given,  and  all  his  personal  estate  to  two  trustees  in  trust  to 
sell  the  same,  and,  out  of  the  proceeds,  to  pay  the  testator's  debts 
and  pecuniary  legacies,  including  a  legacy  to  each  of  fifteen  persons, 
and  to  divide  the  residue  among  the  same  fifteen  persons  in  pro- 
portion to  their  respective  legacies.  Two  of  these  legatees  died 
before  the  testator,  and  so  the  gifts  to  them  lapsed ;  and.  the 
property  having  been  sold,  the  question  was  what  should  be  done 
with  so  much  of  the  money  intended  for  them  as  was  produced  by 
the  sale  of  the  land.  It  was  claimed  by  the  testator's  next  of  kin 
to  belong  to  them,  as  having  become  part  of  the  testator's  personal 
estate,  and  they  filed  a  bill  against  the  trustees  to  enforce  their 
claim,  making  the  thirteen  surviving  legatees  and  the  testator's 
heir  co-defendants.  The  case  was  first  heard  by  Sir  T.  Sewell, 
M.  R.,  who  gave  the  entire  fund,  i.  c,  the  produce  of  the  land  as  well 
as  the  personal  estate,  to  the  thirteen  surviving  legatees,  where- 
upon the  plaintiffs  appealed,  and  the  appeal  was  heard  by  Lord 
Thurlow,  who  decided  in  favor  of  the  heir.  The  latter  was  repre- 
sented by  Mr.  Scott  (afterwards  Lord  Eldon  ^)  who  argued  the  cause 
fully  at  both  hearings.  His  argument  before  Lord  Thurlow  is  re- 
ported as  written  out  by  himself  and  furnished  to  the  reporter.^ 
The  heir  in  fact  made  no  claim  to  the  money,  but,  being  a 
necessary  party  to  the  suit,  he  had  to  be  represented  by  counsel 
at  the  hearing,  and  accordingly  his  solicitor  instructed  Mr.  Scott 
(who  was  then  only  twenty-eight  years  old,  and  who  had  been  only 
four  years  at  the  bar'^)  to  represent  him,  and  consent,  on  his 
behalf,  to  whatever  decree  the  court  should  sec  fit  to  make,  giving 


1  Lord  Eldon  gave  in  a  conversation,  a  little  more  than  three  weeks  before  his 
death,  a  very  interesting  account  of  his  connection  with  Ackroyd  v.  Smithson.  See 
I  Twiss,  Life  of  Lord  Eldon,  1 16-120. 

2  See  I  Bro.  C.  C,  Belt's  ed.,  503,  n.  i. 

3  Lord  t:idon  tells  us  that  during  his  first  eleven  months  at  the  bar  he  received 
nothing,  that  during  the  twelfth  month  he  received  half  a  guinea;  see  1  Twiss,  100. 


3^6        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

him  a  fee  of  one  guinea,  that  being  the  established  fee  for  such  a 
service.  Mr,  Scott,  however,  having  satisfied  himself  that  the  heir 
was  entitled  to  the  money,  so  advised  him,  and  declined  to  rep- 
resent him  unless  he  could  argue  the  case;  and  the  result  was  that 
he  argued  it  at  each  hearing  without  a  fee,  i.  e.,  on  receiving  a  fee 
merely  for  consenting  to  a  decree,  the  heir  declining  to  increase  his 
fee  and  thus  "  send  good  money  after  bad."  ^ 

At  the  hearing  before  Lord  Thurlow,  the  counsel  for  the  next  of 
kin  contended  ^  "  that  the  testator  had  converted  his  real  estate  into 
money,  out  and  out,  that  he  had  mixed  two  funds,  and  made  all 
personal  estate ;  that  the  cases  therefore  of  Mallabar  v.  Mallabar 
and  Durour  v.  Motteux  must  govern  the  decision  here,  and  that 
the  blending  the  funds  distinguished  this  case  from  that  of  Digby 
V.  Legard."  Mr.  Scott  also  said  :  ^  "If  the  interest  of  the  deceased 
legatees  had  been  an  interest  in  the  produce  of  mere  real  estate, 
not  blended  with  the  produce  of  personal  estate,  it  has  been 
admitted,  upon  both  hearings,  that  the  benefit  of  the  lapsed 
devises  would,  according  to  the  case  of  Digby  v.  Legard,  and 
the  principle  of  the  case  of  Emblyn  v.  Freeman,  and  of  many 
others,  have  accrued  to  the  heir  at  law.  It  is  admitted,  and  cannot 
be  denied,  that  where  a  testator  directs  real  estate  to  be  sold  for 
special  purposes,  if  any  of  those  purposes  become  incapable  of 
taking  effect,  the  heir  at  law  shall  take;  because  there  is  an  end  of 
the  disposition,  when  there  is  an  end  of  the  purposes  for  which 
it  was  made: — but  it  is  contended  here  the  testator  had  not  a 
special  intention,  but  that  he  meant  the  produce  of  his  real  estate 
should  be  considered  as  personal  estate,  that  he  intended  to  con- 
vert it  out  and  out;  that  he  has  not  kept  the  funds  distinct,  but 
that  he  has  blended  them  so  as  to  be  incapable  of  being  distin- 
guished, and  that  the  cases  therefore  of  Durour  v.  Motteux,  and 
Mallabar  v.  Mallabar,  are  authorities  in  point,  that  the  whole  fund 
is  personal. — We  admit  that  a  person  may  decide  what  shall  be 
the  nature  of  his  property  after  his  death,  so  as  to  preclude  all 
question  between  real  and  personal  representatives."  Such  were 
the  views  of  the  counsel  for  the  next  of  kin,  so  far  as  we  know 
them,  and  such  were  their  admissions  in  favor  of  the  heir  and  Mr. 
Scott's  admission  in  favor  of  the  next  of  kin.  It  was,  therefore, 
agreed  between  them  that  everything  depended  upon  the  testator's 
intention.     How,  then,  was  his  intention,  as  to  the  conversion  of  his 

J  I  Twis.s,  n8.  ^  i  Bro.  C.  C.  505.  ^  i  Bro.  C.  C.  506. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         in 

land  into  money,  to  be  ascertained?  According  to  I\Ir.  Scott,  the 
way  was,  first,  to  inquire  for  what  purposes  he  had  directed  his  land 
to  be  sold,  and,  secondly,  to  what  extent  those  purposes  had  been 
efifective ;  for,  as  to  such  purposes,  if  any,  as  had  failed  to  take 
effect,  Mr.  Scott  insisted  that  it  was  the  same  as  if  those  purposes 
had  never  been  declared  by  the  testator.  He  also  argued,  with 
great  force,  that  the  entire  burden  of  proof  was  on  the  next  of  kin  ; 
that  it  was  not  necessary,  therefore,  for  the  heir  to  show  that  the 
testator  had  any  intention  in  his  favor,  it  being  sufficient  for  him 
that  no  intention  had  been  shown  in  favor  of  the  next  of  kin,  while 
it  was  indispensable  for  the  next  of  kin  to  show  an  intention  in  their 
favor,  as  their  claim  had  no  other  foundation  to  rest  upon. 

To  the  argument  which  the  counsel  for  the  next  of  kin  founded 
upon  the  blending  of  the  testator's  land  and  personal  estate  into 
one  fund,  Mr.  Scott  made  the  same  answer  as  to  the  rest  of  their 
argument,  namely,  that  the  testator  intended  that  the  two  funds 
should  be  blended  into  one  only  for  the  purposes  of  the  gifts  which 
he  had  made  of  the  blended  fund,  and,  therefore,  only  so  far  as 
those  gifts  should  be  effective. 

It  will  be  seen,  therefore,  that  ]\Ir.  Scott  came  very  near  taking 
what  is  conceived  to  be  the  correct  view,  namely,  that  the  extent 
to  which  the  testator  had  converted  his  land  into  money  in  equity 
depended  upon  the  extent  to  which  he  had  made  effective  gifts  of 
the  proceeds  of  the  sale  which  he  had  directed,  and  he  never  once 
alluded  to  the  testator's  direction  to  sell  his  land  as  measuring  the 
extent  of  its  conversion  in  equity.  Indeed,  he  fell  short  of  taking 
the  view  that  the  extent  of  the  equitable  conversion  depended 
wholly  upon  the  extent  of  the  gifts  just  referred  to,  only  by 
making  those  gifts  the  sole  evidence  of  the  testator's  intention  to 
convert,  instead  of  making  them  the  measure  of  the  conversion 
without  regard  to  the  testator's  intention  to  convert. 

There  was  one  feature  of  the  case,  however,  which  Mr.  Scott's 
argument  thus  far  failed  to  meet;  for,  though  the  proceeds  of  the 
sale  of  the  land  had  not  all  been  disposed  of,  a  sale  of  all  the  land 
was  no  less  necessary  than  it  would  have  been  if  all  the  proceeds 
of  the  sale  had  been  disposed  of,  there  being  no  other  way  of 
ascertaining  what  amount  of  money  the  thirteen  surviving  lega- 
tees were  entitled  to  receive;  and,  though  Mr.  Scott  had  very 
skilfully  diverted  the  attention  of  the  court  from  the  question 
whether  a  sale  of  all  the  land  was  necessary,  and  had  directed  it 
exclusively  to  the  consequences  to  be  deduced  from  the  testator's 


338        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

failure  to  make  an  effective  gift  of  all  the  proceeds  of  the  sale,  yet 
upon  authority  it  was  the  intention  of  the  testator  to  have  the  land 
sold,  or  the  existence  of  a  right  created  by  him  to  have  it  sold, 
that  caused  its  conversion  in  equity,  and  the  testator's  failure  to 
dispose  of  all  the  proceeds  of  the  sale  was  material  only  so  far  as 
it  showed  an  absence  of  such  intention,  or  the  non-existence  of  such 
a  right.  What  was  the  testator's  intention,  then,  in  the  events 
which  had  happened,  as  to  the  sale  of  his  land?  Clearly  it  was 
that  it  should  all  be  sold.  To  be  sure,  the  evidence  of  this  inten- 
tion was  not  as  direct  as  it  would  have  been  if  the  testator  had  made 
an  effective  gift  of  all  the  proceeds  of  the  sale  which  he  directed, 
but  it  was  no  less  certain.  When  a  testator  creates  a  trust  as  to 
land  which  can  be  carried  into  effect  only  by  a  sale  of  the  land,  the 
law  regards  it  as  certain  that  a  sale  of  the  land  was  intended.  It  is 
equally  clear  also  that  there  existed  a  right,  created  by  the  testa- 
tor, to  have  all  the  land  sold.  Indeed,  such  a  right  existed  in  each 
of  the  thirteen  surviving  legatees. 

It  follows  then  that,  upon  authority,  there  was  a  complete  con- 
version in  equity  of  all  the  land  into  money ;  and,  if  so,  it  also  follows, 
from  Mr.  Scott's  own  admission,  that  the  next  of  kin  were  entitled 
to  so  much  of  the  proceeds  of  the  sale  as  would  have  gone  to 
the  two  deceased  legatees  if  they  had  survived  the  testator;  for, 
though  in  terms  he  admitted  only  that  a  testator  "  may  decide  what 
shall  be  the  nature  of  his  property  after  his  death,"  yet  it  is  by 
means  of  equitable  conversion  alone  that  a  testator  can  decide  that 
his  land  shall,  after  his  death,  have  the  nature  of  money,  or  that  his 
money  shall  have  the  nature  of  land.  Moreover,  if  a  testator  can 
do  this  by  any  equitable  conversion  which  he  can  make,  the  testa- 
tor did  it  in  Ackroyd  v.  Smithson  by  the  equitable  conversion 
which  he  made. 

How,  then,  did  Mr,  Scott  deal  with  the  admitted  fact  that  a  sale 
of  all  the  land  was  necessary?  The  answer  is  that,  in  terms,  he  did 
not  deal  with  it  at  all,  and  his  reason  seems  to  have  been  that  he 
regarded  the  fact  that  all  the  land  had  been  actually  sold  as  having 
rendered  immatedal  the  fact  that  a  sale  of  it  all  was  necessary,  and 
accordingly  he  dealt  with  the  former  fact  instead  of  the  latter. 
How  did  he  deal  with  it?  Simply  by  insisting  that  so  much  of 
the  proceeds  of  the  sale  as  was  intended  for  the  two  deceased 
legatees  was  still  land  in  equity.  He  said  :  "  Money  undisposed  of, 
arising  from  the  sale  of  lands,  in  this  court  is  land  ;  and,  as  such, 
the  heir  claims  it.     Suppose  all  the  fifteen  legatees  had  died  in  the 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         339 

lifetime  of  the  testator,  would  it  not  have  been  competent  to  the 
heir  at  law  to  have  insisted,  in  equity,  that  no  sale  should  be  made 
of  the  real  estate?^  ...  If  then,  in  case  all  the  residuary  lega- 
tees had   died,  the   heir  could  have  prevented    a   sale,  —  is   it  to 

1  I  Ero.  C.  C.  507.     Lord  Eldon  also  used  similar  language  judicially,  more  than 
thirty  years  later  in  the  case  of  Hill  v.  Cock,  i  Ves.  &  B.  173,  in  which  he  said  :  "  The 
only  point,  calling  for  decision  under  this  bill,  is  whether  the  money  arising  from  the 
sale  of  the  real  estate,  which  it  is  not  necessary  to  apply  for  the  only  purpose  expressed 
in  the  will,  is  to  be  considered  real  or  personal  estate.  .  .  .  Where  real  estate  is  directed 
to  be  converted  into  personal,  for  a  purpose  expressed,  which  purpose  fails,  either 
wholly  or  partially,  in  the  former  case  though  the  estate  has  been  converted,  the  whole 
produce  of  that  conversion  will  still  be  real  estate  ;  and  in  the  latter,  as  far  as  the 
purpose  fails,  so  far  the  money  is  to  be  considered  realty,  and  not  personalty.  ...  So 
much  of  the  residue  of  this  money  as  arose  from  real  estate,  must  be  considered   as 
real   and  be  declared  to  belong  to  the  heir."     Nor  was  Lord  Eldon  peculiar  in  this 
respect.     In  Green  v.  Jackson,  5  Russ.  35,  2  R.  &  M.  23S,  Sir  J.  Leach,  M.  R.,  said 
(p.  3S) :  "  If  a  testator  directs  his  real  estate  to  be  sold,  and  the  produce  to  be  ap- 
plied for  a  particular  purpose  only,  and  that  purpose  fails,  the  money  intended  for 
that  purpose  retains  the  quality  of  real  estate,  and  belongs  to  the  heir."     So  also  as 
late  as  1S64  Lord  Westbury,  when  Lord  Chancellor,  in  moving  the  judgment  of  the 
House  of  Lords  in  Bective  v.  Hodgson,  10  H.  L.  Gas.  657,  said  (p.  666)  :  "  The  decree 
[in  Hopkins  v.  Hopkins,  Gas.  t.  Talb.  44,  which  had  been  relied  upon  by  the  appellant] 
was  governed  by  an  error  which  then  prevailed,  namely,  that  personal  property  directed 
to  be  converted  into  realty  was  converted  for  all  purposes  whatsoever,  not  only  the  pur- 
poses of  the  will,  but  the  purposes  of  ownership  in  every  form  and  by  every  title. 
And  accordingly  it  was  held  that  that  conversion  would  operate  for  the  benefit  of  the 
heir,  although  the  heir  claims  in  default  of  disposition  in  consequence  of  there  being 
no  direction  given  by  the  will,  and  cannot  by  any  possibility  be  fhade  to  claim  under 
the  will.     That  prevalent  error  was   not   corrected  until  the  decision  of  the  case  of 
Ackroyd  v.   Smithson,  which  decided  a  point  that  of  necessity  involved  this  as  its 
consequence,  that  conversion  must  be  considered  in  all  cases  to  be  directed  for  the 
purposes  of  the  will,  and  is  limited  by  the  purposes  and  exigencies  of  the  will.     If 
therefore  the  real  estate  be  directed  to  be  sold,  with  a  view  to  a  disposition  made  by 
a  will,  and  that  disposition  fails,  although  the  real  estate  has  de  facto  been  sold,  yet 
the  proceeds  will  retain  the  quality  of  real  estate,  for  the  purpose  of  ascertaining  the 
ownership,  that  is,  the  title  of  the  heir;  although  it  is  true  that  when  you  pay  it  over 
to  the  heir,  in  the  hands  of  the  heir  it  has  the  character  of  money,  and  no  longer  the 
character  of  real  estate.     So,  in  like  manner,  if  money  is  directed  to  be  invested  in 
land,  and  the  land  is  disposed  of  by  the  will,  and  the  money  is  so  invested,  but  the 
disposition  fails,  the  investment  thus  made  for  the  purposes  of  the  will  has  no  effect 
in  altering  the  quality  of  the  property ;  but  the  property,  even  in  the  shape  of  lands, 
retains  its  pristine  and  original  quality  of  personal  estate,  for  the  purpose  of  determin- 
ing the  ownership."     The  instances  also  are  common  in  which  judges  speak  of  money 
as  being  land  in  equity  for  no  other  reason  than  that  the  heir  as  -such  is  entitled  to 
have  it  paid  to  him.     The  reason  for  the  prevalence  of  this  language  seems  to  have 
been  that  a  notion  prevailed  that  an  heir  as  such  cannot  be  entitled  to  money  unless 
it  is  land  in  equity.     It  is  true  that  money  cannot  descend  to  an  heir  unless  it  is  land 
in  equity;  but  land  which  has  descended  to  an  heir  is,  of  course,  as  liable  to  be  con- 
verted into  money  as  any  other  land,  and  the  consequences  of  its  conversion  are  the 
same  as  in  other  cases. 


340        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

be  said  that  because  a  sale  must  be  made,  he  shall  not  have  that 
part  of  its  produce  which  the  objects  of  the  testator's  bounty  cannot 
take  ?  It  is  not  true  that  where  it  is  necessary  that  a  sale  should  be 
made,  to  effectuate  the  testator's  purposes  which  are  capable  of  talc- 
ing effect,  that  such  sale  will  convert  the  nature  of  that  part  of  its 
produce  which  cannot  be  applied  according  to  the  testator's  inten- 
tion." ^  To  this  it  may  be  answered,  first,  that  Mr.  Scott's  con- 
tention that  the  money  in  question  was  land  in  equity,  was  not  at 
all  necessary  for  his  case,  as  the  heir  had  the  same  right  to  the 
money  after  the  sale,  that  he  had  before  the  sale  to  the  land  which 
the  money  represented  ;  ^  secondly,  the  money  in  question  could 
not  be  deemed  land  in  equity  for  any  purpose.  The  only  way  in 
which  equity  can  regard  money  as  land  is  by  converting  it  directly 
into  land,  and,  as  the  land  in  question  had  been  actually  converted 
into  money  by  the  direction  of  its  owner,  equity  had  no  right  what- 
ever to  reconvert  it  into  land. 

The  real  difficulty,  however  (upon  authority,  for  there  is  no 
difficulty  upon  principle),  lies  in  the  fact,  not  that  the  land  had  all 
been  sold,  but  that  its  sale  had  been  directed  by  the  testator,  and 
to  that  fact  Mr.  Scott  gave  no  answer.  While,  therefore,  the 
money  in  controversy  clearly  belonged  to  the  heir,  Mr.  Scott  did 
not  succeed  in  proving  that  it  belonged  to  him;  and,  indeed,  he 
attempted  a  feat,  the  performance  of  which  was  impossible,  namely, 
to  establish  his  tontention  by  authority. 

What,  then,  is  to  be  said  of  Lord  Thurlow's  decision?  From 
Brown's  report  of  the  case,  one  would  infer  that  the  decision  was 
rendered  at  the  conclusion  of  the  argument,  but  Lord  Eldon  tells 
us  that  "Thurlow  took  three  days  to  consider"'^  before  delivering 
his  judgment.  According  to  the  report  he  disposed  of  the  case  in 
a  few  informal  observations.  He  said,^  "  he  fully  approved  the  de- 
termination in  Digby  v.  Legard  ;  he  used  to  think,  when  it  was 
necessary  for  any  purposes  of  the  testator's  disposition,  to  convert 
the  land  into  money,  that  the  undisposed  of  money  would  be 
personalty;  but  the  cases  fully  proved  the  contrary.  It  would  be 
too  much  to  say,  that  if  all  the  legatees  had  died,  the  heir  could,  as 
he  certainly  might,  prevent  a  sale ;   and  yet  to  say  that,  because  a 

1  Page  508.  "^  Supra,  p.  263. 

3  "  Well,  Thurlow  took  three  days  to  consider,  and  then  delivered  his  judgment  in 
accordance  with  my  speech,  and  that  speech  is  in  print,  and  has  decided  all  similar 
questions  ever  since."     i  Twiss,  119. 

4  I  Bro.  C.  C.  514. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         341 

sale  was  necessary,  the  heir  should  not  take  the  undisposed  of  part 
of  the  produce.     The  heir  must  stand  in  the  place  of  the  residuary 
legatees  who  died,  as  to  the  produce  of  the  real  estate.      He  said 
he  approved  the  distinctions  made  in  behalf  of  the  heir."      It  will 
be  seen,  therefore,  that,  if  Lotd  Thurlow  is  correctly  reported,  his 
original  opinion   in  favor  of  the  next  of  kin  was  founded  on  the 
fact  that  the  purposes  of  the  testator  which  had  taken  effect  made 
it  necessary  that  all  the  land  should  be  sold.      Why  then  had  he 
abandoned  that  view?     One  reason  was  that  he  regarded  Digby  v. 
Legard  as  a  direct  authority  against  it;   but  in  that,  as  we  have 
seen,  he  was  in  error.     Another  reason  given  by  him  was  that,  if 
all  the  fifteen  legatees  had  died  before  the  testator,  all  the  land 
would  have  gone   to   the   heir,  and  therefore  it   followed  that,  as 
some,  but  not  all,  of  the  legatees  had  so  died,  a  proportional  part 
of  the  land  ought  to  go  to  the  heir,  though  a  sale  of  all  the  land 
would  be  necessary  in  the  latter  case,  and  none  of  it  in  the  former. 
In  other  words,  he  had  become  convinced  that  the  rights  of  the 
heir  ought  not  to  depend  upon  the  mere  question  whether  the  tes- 
tator's purposes  required  a  sale  of  the  land.     It  will  be  seen,  there- 
fore, that  Lord  Thurlow  came  very  near  accepting  the  proposition 
that   a  testator   causes  an  equitable  conversion   of  his   land   into 
money,  not  by  directing  a  sale  of  it,  but  by  making  some  effective 
disposition  of  the  proceeds  of  the  sale,  and  hence  that  the  extent 
of  the  conversion,  if  there  be  a  conversion,  is  in  proportion  to  the 
extent  of  the  disposition  of  the  proceeds  of  the  conversion.     He 
did  not,  however,  accept  that  proposition,  but  professed  to  go  upon 
authority,  and,  upon  authority,  the  difference  between  the  effect 
produced  by  the  deaths  of  all  the  legatees,  and  the  deaths  of  some 
of  them   only,   is   decisive.     Moreover,   it   is  very  far  from  being 
clear,  upon  authority,  that  a  sale  of  all  the  land  would   not  have 
been  necessary,  even  though  all  the  legatees  had  died  before  the 
testator.^     Hence  both  of  Lord  Thurlow's  reasons  for  changing  his 
mind  seem  to  fail. 

Nor  do  Lord  Thurlow's  reasons  enable  anyone  to  say  upon  what 
legal  ground  he  decided  in  favor  of  the  heir,  and  therefore  all 
that  he  can  be  regarded  as  having  decided  is  that  the  heir  was  en- 
titled to  the  money  in  controversy.  Hence  it  follows  that  the 
decision  is  not  properly  an  authority  for  any  legal  proposition,  but 
has  the  authority  of  a  precedent  only.     As  a  precedent,  however, 


1  See  infra,  p.  353,  proposition  8. 


342         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

it  is  an  undoubted  authority  that  where  a  testator  directs  a  sale  of 
his  land,  but  dies  intestate  as  to  some  portion  of  the  proceeds  of 
the  sale,  that  portion  of  the  proceeds,  or  so  much  of  the  land  as  it 
represents,  will  go  to  the  heir,  and  not  to  the  next  of  kin;^  and 
accordingly  Phillips  v.  Phillips^  is  the  only  case,  since  Ackroyd  v. 
Smithson,  in  which,  such  a  question  as  the  foregoing  being  in- 
volved, the  decision  has  been  in  favor  of  the  next  of  kin ;  and 
the  decision  in  that  case,  after  being  universally  disapproved  of  for 
twenty-one  years,  was  at  length  formally  overruled  by  Lord  Cran- 
worth  in  Taylor  v.  Taylor.^ 

Indirectly,  however,  the  decision  in  Ackroyd  v.  Smithson  was 
the  means  of  establishing  rules  and  distinctions  theretofore  unheard 
of.  For  example,  after  that  decision  it  was  no  longer  true  that  an 
unqualified  direction  in  a  will  to  sell  land  caused  an  absolute  con- 
version of  the  land  into  money,  irrespective  of  the  purposes  for 
which  the  sale  was  directed,  or  of  the  extent  to  which  those  pur- 
poses took  effect;  for,  as  was  said  by  Sir  W.  Grant,  in  Williams  v. 
Coade,*  "  There  could  not  be  a  more  absolute  direction  for  conver- 
sion than  that  in  Ackroyd  ■:'.  Smithson  "  ;  and  yet  it  was  there  held 
that  there  was  not  an  absolute  conversion  of  all  the  land,  in  the 
sense  in  which  the  term  conversion  was  then  understood,  and 
hence  there  soon  came  to  be  a  clear  distinction  between  a  conver- 
sion "  out  and  out  "  and  a  conversion  for  the  purposes  of  the  will 
only.  Thus,  in  1787,  Mr.  Cox,  in  his  note  to  Cruse  v.  Barley,  said^ 
the  several  cases  on  the  subject  of  equitable  conversion  "  seem 
to  depend  upon  this  question,  whether  the  testator  meant  to  give 
to  the  produce  of  the  real  estate  the  quality  of  personalty  to  all  in- 
tents, or  only  so  far  as  respected  the  particular  purposes  of  the 
will."     Six  years    later,    he    added    to  the  above  the  following:^ 

1  Robinson  v.  Taylor,  2  Bro.  C.  C.  5S9;  Williams  v.  Coade,  10  Ves.  500,  Berry  v. 
Usher,  11  Ves.  87  ;  Smith  v.  Claxton,  4  Madd.  484;  Hill  -'.  Cock,  i  Ves.  &  B.  173; 
Maugham  v.  Mason,  i  Ves.  &  B.  410 ;  Gibbs  v.  Rumsey,  2  Ves.  &  B.  294  ;  Jessop  v.  Wat- 
son, I  M.  &  K.  665  ;  Eyre  v.  Marsden,  2  Keen  564  ;  Williams  v.  Williams,  5  L.  J.  (N.  s.) 
Ch.  84;  Fitch  V.  Weber,  6  Hare  145;  Johnson  v.  Woods,  2  Beav.  409  ;  Flint  v.  War- 
ren, 16  Sim.  124;  Gordon  v.  Atkinson,  i  De  G.  &  Sm.  478;  Shallcross  v.  Wright,  12 
Beav.  505  ;  Taylor  v.  Taylor,  3  De  G.  M.  &  G.  190 ;  Christian  v.  Foster,  7  Beav.  540,  2 
Ph.  161  ;  Robinson  z/.  London  Hospital,  ic  Hare  19;  Taylor's  Settlement,  hire,  9  Hare 
596;  Hatfield  v.  Prime,  2  Coll.  204;  Wilson  v.  Coles,  28  Beav.  215;  Bagster  v.  Fack- 
erell,  26  Beav.  469;  Hamilton  v.  Foot,  Ir.  R.  6  Eq.  572;  Richerson,  In  re,  [1892]  i  Ch. 
379;  White  V.  Smith,  15  Jur.  1096;  Bedford  v.  Bedford,  35  Beav.  584. 

2  I  Myl.  &  K.  649.  3  3  De  G.  M.  &  G.  190. 

*  10  Ves.  500,  504.  ^  3  P-  Wms.  4th  ed.,  22,  n.  i. 

*  3  P.  Wms.  5th  ed.,  22,  n.  i. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         343 

"  For  unless  the  testator  has  sufficiently  declared  his  intention,  not 
only  that  the  realty  shall  be  converted  into  personalty  for  the  pur- 
poses of  the  will,  but  further  that  the  produce  of  the  real  estate 
shall  be  taken  as  personalty,  whether  such  purposes  take  effect  or 
not,  so  much  of  the  real  estate,  or  the  produce  thereof,  as  is  not 
effectually  disposed  of  by  the  will,  at  the  time  of  the  testator's 
death  (whether  from  the  silence  or  the  inefficacy  of  the  will 
itself,  or  from  subsequent  lapse)  will  result  to  the  heir." 

On  the  death  of  the  testator  in  Ackroyd  v.  Smithson,  only  three 
different  rights  devolved  from  him  relating  to  his  land,  namely, 
first,  the  legal  ownership  of  the  land,  which  devolved  upon  the 
trustees  by  the  devise  to  them  ;  secondly,  the  equitable  ownership 
of  the  land,  which  descended  to  the  testator's  heir;  and,  thirdly, 
the  right  to  have  the  land  sold,  i.  e.,  exchanged  for  money,  and  to 
receive  the  money  or  some  portion  of  it,  with  the  incidental  right 
to  receive  the  rents  and  profits  of  the  land  until  the  sale  was  made. 
This  third  right  did  not,  indeed,  in  strictness  devolve  from  the 
testator,  for  it  was  never  in  him,  but  was  newly  created  by  his  will, 
and  not  till  the  moment  of  his  death,  and  it  vested  originally  in 
each  of  his  thirteen  surviving  residuary  legatees,  and  in  no  one 
else.  It  could  not  possibly  vest  in  the  testator's  next  of  kin,  as  it 
was  not  created  in  their  favor.  As,  therefore,  no  right  was  created 
by  the  will  in  favor  of  anyone  to  receive  that  portion  of  the 
produce  of  the  land  which  was  intended  for  the  two  deceased 
legatees,  it  necessarily  belonged  to  the  heir,  to  whom  the  land 
which  it  represented  belonged  when  the  sale  was  made.  How, 
then,  could  the  notion  ever  be  entertained  that  the  next  of  kin 
stood  in  the  place  of  the  two  deceased  legatees?  Such  a  notion, 
as  I  have  already  said,^  is  intelligible  only  on  the  assumption  that 
the  case  was  a  wholly  different  one  from  what  it  was  in  fact, 
namely,  that  that  portion  of  the  land,  the  produce  of  which  was  in- 
tended for  the  two  deceased  legatees,  was,  at  the  moment  of  the 
testator's  death,  converted  directly  into  money  by  equity  itself,  and 
hence,  being  undisposed  of,  it  belonged  to  the  next  of  kin.  It  will 
be  seen,  therefore,  when  the  question  is  considered  according  to 
the  truth  of  the  case,  that  the  right  of  the  heir  did  not  depend 
upon  whether  that  portion  of  the  land,  the  produce  of  which  was 
intended  for  the  two  c3eceased  legatees,  had  been  converted  by  the 
will  into  money  in  equity.     The  only  difference  was  that,  if  it  had 

1  See  supra,  p.  332. 


344        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

not  been  so  converted,  it  not  only  devolved  in  equity  upon  the 
heir,  but  was  land  in  his  hands  until  it  was  actually  sold,  while,  if 
it  was  so  converted,  though  it  still  devolved  upon  the  heir,  yet  he 
took  it  as  money,  and  hence,  if  he  had  died  the  day  after  the 
testator  it  would  have  gone  to  his  personal  representative. 

The  courts,  however,  seem  to  have  thought  the  question  be- 
tween the  heir  and  the  next  of  kin  depended  upon  whether  there 
had  been  an  equitable  conversion  or  not,  and  that  the  latter  ques- 
tion was  purely  a  question  of  the  testator's  intention;  that  accord- 
ingly, in  Ackroyd  v.  Smithson,  if  the  testator  intended  to  convert 
all  his  land  into  money,  the  next  of  kin  were  entitled  to  stand  in 
the  place  of  the  two  deceased  legatees,  but  that,  if  the  testator 
intended  a  conversion  only  coextensive  with  the  disposition  which 
he  had  made  of  the  proceeds  of  the  sale,  the  heir  was  entitled  to 
stand  in  the  place  of  the  two  deceased  legatees.  Thus  far,  there- 
fore, there  was  no  conception  of  the  idea  of  an  heir's  taking  land 
by  descent,  and  yet  taking  it  as  money,  the  idea  being  that  the 
heir  took  it,  if  it  was  land  in  equity,  and  the  next  of  kin,  if  it  was 
money.  In  Robinson  v.  Taylor,^  however,  decided  in  1789  (nine 
years  after  Ackroyd  v.  Smithson),  Lord  Thurlow  started  the  idea"^ 
that  the  heir  must  take  unless  the  testator  showed  an  intention, 
not  merely  that  the  land  should  be  converted,  but  that  its  conver- 
sion should  take  effect  as  from  a  date  prior  to  the  testator's  death, 
it  being  assumed  that  the  testator's  power  to  make  such  a  conver- 
sion was  free  from  doubt.  This  idea,  moreover,  has  since  exerted 
a  great  influence,  particularly  in  preventing  testators  from  so  con- 
verting their  land  into  money  as  to  cause  it  to  devolve  upon  their 
next  of  kin.      It  soon  had  the  effect,  also,  of  establishing  the  dis- 


1  2  Bro.  C.  C.  5S9. 

2  Lord  Thurlow  said  (p.  594):  "The  difficulty  is  to  find  that  an  unsold  residue  of 
real  estate  can,  by  any  means,  go  from  the  heir  at  law.  Inferences  have  been  ad- 
mitted, where  the  testator  has  not  expressed  himself  clearly,  to  show  that  he  meant  to 
convert  the  real  into  personal  estate.  If  it  is  once  deemed  sufficient  that  he  meant 
it  to  be  turned  into  money,  to  make  it  the  same  as  if  it  had  been  money  before  his 
death,  then  you  will  have  the  testator  declaring  that  he  did  so.  In  all  the  cases,  it  has 
been,  where  he  meant  it  to  be  converted,  out  and  out,  that  the  testator  meant  it  should 
become  money,  but  the  question  is  whether  he  meant  it  to  be  the  same  as  if  it  had 
been  money  before  his  death.  It  has  not  been  held  to  be  part  of  the  personal  estate, 
but  to  be  disposed  of  as  if  it  was  part  of  the  personal  estate.  The  heir  at  law  is  en- 
titled to  the  residue  as  a  resulting  fund.  ...  I  do  not  see  how  the  personal  represen- 
tative can  ever  get  at  that  which  was  not  personal  at  the  death  of  the  testator,  but  by 
an  express  direction  —  therefore.  I  think  the  heir  at  law,  here,  is  entitled  to  the  residue 
of  the  real  estate  as  a  resulting  fund." 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         345 

tinction  between  an  heir's  taking  land  as  land  and  taking  it  as 
money;  for,  if  a  testator  showed  an  intention  to  convert  his  land 
into  money,  but  not  so  to  convert  it  as  to  carry  it  to  the  next  of 
kin,  it  followed  that  it  must  go  to  the  heir,  and  yet  he  could  take 
it  only  as  money,  as  it  would  be  converted  into  money  in  equity 
immediately  on  the  testator's  death.  Suppose,  however,  it  should 
turn  out  that,  while  Lord  Thurlow's  idea  was  adhered  to  in  other 
respects,  a  testator  had  no  power  so  to  convert  his  land  into 
money  by  will  that  the  conversion  would  take  effect  before  his 
death.  Of  course  the  consequence  would  be  that  the  heir  would 
take,  whether  there  was  an  equitable  conversion  or  not,  taking  the 
land  as  land  if  there  was  not  an  equitable  conversion,  and  taking 
it  as  money  if  there  was.  Moreover,  that  was  virtually  what  hap- 
pened. Thus,  in  Sheddon  v.  Goodrich,^  where  a  testator,  by  a  will 
attested  by  three  witnesses,  had  directed  his  land  to  be  sold,  and 
had  made  a  disposition  of  the  proceeds  of  the  sale,  it  was  held  by 
Lord  Eldon  that  he  could  not  by  a  subsequent  will,  attested  by 
two  witnesses  only,  change  such  disposition;  and  in  Hooper  c. 
Goodwin,^  where  land  was  directed  by  will  to  be  sold,  it  was  held 
by  Sir  W.  Grant,  M.  R.,  that  the  produce  of  the  sale  could  not 
be  disposed  of  by  an  unattested  codicil;  and,  in  neither  of  these 
cases  was  any  inquiry  made  as  to  the  time  when  the  testator  in- 
tended the  equitable  conversion  of  his  land  should  take  effect. 
After  these  decisions,  therefore,  it  seems  to  have  been  impossible 
to  contend  that  any  equitable  conversion  by  will  could  take  effect 
before  the  testator's  death.  Accordingly,  in  the  well-considered 
case  of  Smith  v.  Claxton,^  where  a  testator  made  two  separate 
devises  of  two  parcels  of  land  in  trust  to  be  sold  for  purposes 
which  totally  failed,  as  to  the  land  first  devised,  and  which  par- 
tially failed,  as  to  the  land  secondly  devised,  and  the  testator's  heir 
died  soon  after  the  testator  and  before  either  parcel  of  land  was 
sold,  Sir  J.  Leach,  V.  C,  held  that,  in  the  events  which  had  hap- 
pened, the  testator  did  not  intend  to  convert  the  parcel  of  land 
first  devised,  and  hence  it  descended  in  equity  to  the  heir,  and  he 
took  it  as  land;  but  that  he  did  intend  to  convert  the  entire  inter- 
est in  the  land  secondly  devised,  a  sale  of  the  entire  interest  being 
necessary  for  the  purpose  which  had  taken  effect,  and,  therefore, 
though  the  undivided  half  of  the  land,  as  to  which  the  purpose 
of  the  sale  had  failed,  had   descended  to  the   heir  in  equity,  the 

1  S  Ves.  4S1.  -  iS  Ves.  156.  s  ^  Madd.  4S4. 


34^        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

equitable  conversion  of  it  not  coming  in  time  to  intercept  its  de- 
scent to  him,  yet  the  heir  took  it,  not  as  land,  but  as  money.  So 
also,  fourteen  years  later,  in  the  case  of  Jessopp  v.  Watson,^  where 
the  testator  devised  his  land  in  trust  to  be  sold  for  the  payment 
of  his  debts,  legacies,  and  annuities,  and  also  for  other  purposes 
which  totally  failed,  the  same  learned  judge,  then  Master  of  the 
Rolls,  held  that,  in  the  events  which  had  happened,  the  testator 
intended  that  the  land  should  be  sold,  namely,  for  the  purposes 
which  had  taken  effect,  and,  therefore,  though  the  land  had  de- 
scended to  the  heir,  subject  to  debts,  legacies,  and  annuities,  yet 
he  took  it  as  money .''^ 

The  fact  that  land  directed  by  a  will  to  be  sold,  will  descend  to 
the  testator's  heir,  so  far  as  the  proceeds  of  its  sale  are  not  other- 
wise disposed  of,  notwithstanding  that  the  land  has  been  entirely 
converted  in  equity  by  the  will,  proves  also  that  the  testator's  next 
of  kin  can  never  derive  any  benefit  from  land  so  directed  to  be 
sold,  unless  the  will  contain  a  direct  gift  to  them.  This  latter 
proposition  is,  moreover,  also  directly  established  by  authority. 
Thus,  in  Jarman  on  Wills,^  the  learned  author,  after  quoting  that 
portion  of  Mr.  Cox's  note  to  Cruse  v.  Barley  which  was  published 
in  1787,*  says:  "There  seems  to  be  no  ground  to  except  to  this 
statement  of  the  doctrine,  provided  that,  by  an  intention  to  give  to 
real  estate  the  quality  of  personalty  '  to  all  intents  '  we  are  allowed 
to  understand  something  very  special  and  unequivocal,  amounting 
in  effect,  not  merely  to  a  disposition  of  the  fund  as  personalty  to 
the  legatees  named  in  the  will,  but  to  an  alternative  gift  to  the 
persons  entitled  by  law  to  the  personal  estate,  in  the  event  of  the 
failure  of  the  intended  disposition.  Unless  such  an  interpretation 
be  given  to  the  terms  of  this  proposition,  it  must,  however  respec- 
table the  authority  from  which  it  proceeded,  be  pronounced  to  be 
not  strictly  accurate ;  at  all  events,  it  is  not  an  explicit  statement 
of  the  rule,  and  requires,  it  is  conceived,  in  order  to  be  a  safe 
guide  in  its  application,  the  following  explanatory  addition,  '  But 
that    every    conversion,    however    absolute    in    its    terms,    will    be 

1  I  Myl.  &  K.  665. 

2  I  shall  endeavor  to  show  hereafter  that  there  was,  in  truth,  no  equitable  conver- 
sion in  Jessopp  v.  Watson,  whatever  the  testator's  intention  may  be  supposed  to  have 
been  in  regard  to  a  sale  of  the  land,  as  the  debts,  legacies,  and  annuities,  for  the 
payment  of  which  alone  a  sale  was  to  be  made,  constituted  only  a  charge  on  the 
land.     See  also  18  Harv.  L.  Rev.  83-93.  supra,  pp.  282-292. 

3  Vol.  I.,  1st  ed.,  p.  558,  published  in  1843. 
*  See  supra,  p.  342. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         347 

deemed  to  be  a  conversion  for  the  purposes  of  the  will  only,  unless 
the  testator  distinctly  indicates  an  intention  that  it  is,  on  the  failure 
of  those  purposes,  to  prevail  as  between  the  persons  on  whom  the 
law  casts  the  real  and  personal  property  of  an  intestate,  namely, 
the  heir  and  next  of  kin.'  "     So  also,  in  the  very  carefully   con- 
sidered case  of  Fitch  v.  Weber,^  VVigram,  V.  C,  said  :    "  The  next 
of  kin  are  claiming  property  of  the  testator,  which  at  his  death 
was  real  estate,  and,  in  order  to  substantiate  that  claim  they  must 
make  out  from  the  will  that  they  are   devisees   of  the  property; 
not  being  mentioned  in  the  will,  they  must  make  out  a  devise  by 
implication,  —  which  might  be  sufficient,  although  Lord  Thurlow, 
in  Robinson  v.  Taylor,  has  said  he  '  did  not  see  how  the  personal 
representatives  could  get  at  that  which  was  not  personal  estate  at 
the  death  of  the  testator  but  by  express  words.'     The  law  is  to 
some  extent  clear  upon  authority;   a  devise  upon  trust  to  sell  and 
convert  real  estate  into  money  is,  in  some  sense,  a  direction  to  turn 
real  into  personal  estate,  but  it  is  clear  that  such  a  devise  will  not 
necessarily  entitle  the  next  of  kin  to  claim  any  portion  of  the  pro- 
ceeds of  the  sale  of  real  estate  which,  by  the  terms  of  the  will  or 
in  event,  is  or  becomes  undisposed  of.     The  will  in  that  case  may 
determine  the  quality   in  which   the   property  will   devolve  upon 
those  who  take  it,  but  is  silent  as  to  the  persons   upon   whom   it 
shall  devolve.     The  testator  clearly  means  the  real  estate  to  be- 
come money  after  his  death,  but  (as  Lord  Thurlow  said  in  the  case 
referred  to)  the  question  is,  whether  he  means  it  to  be  the  same 
as  if  it  had  been  money  before  his  death.   ...  In  the  simple  case 
of  a  devise  upon  trust  to  sell,  and  no  trust  of  the  surplus  declared, 
it  has  apparently  been  thought  by  some  text-writers  that  the  court 
would  be  driven  to  imply  a  trust  for  the  next  of  kin;  but  that 
has  never  been  so  decided,  and  if  ever  such  a  case  should  call  for 
decision,  it  may  deserve  much  consideration.     However  clear,  in 
such  a  case,  it  may  be  that  the  testator  means  his  real  to  be  treated 
as  personal  estate  after  his  death,  the  question  remains,  does  he 
mean  it  to  be  treated  also  as  if  it  had  been  personal  estate  before 
his  death?  —  that  (as  Lord  Thurlow  observed)   is  the  question." 
In  Johnson  t'.  Woods,^  also,  Lord  Langdale,  M.  R.,  said:    "It  is 
undoubtedly  practicable  for  a  testator  to  say  that  his  real  estate 
shall  be  sold,  and  that  the  produce  shall  go  to  such  persons  as  are 
by  law  entitled  to  his  personal  estate.     When,  therefore,  it  can  be 


1  6  Hare  145,  147.  ^  2  Beav.  409,  413. 


348        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  r 

ascertained  that  a  testator  intended  that  the  produce  of  real  estate 
should,  to  all  intents  and  purposes,  be  treated  as  personal  estate 
possessed  by  him  at  his  death,  so  as  to  devolve  upon  the  person 
entitled  to  his  personal  estate,  the  court  will   give  effect  to  that 
intention."     In   Flint   v.    Warren,^    Shadwell,  V.   C,  said:    "The 
testatrix   has  directed    her   real  estates    to   be   sold,   and  the    net 
proceeds  to  form  part  of  her  personal   estate ;   but    she    has   not 
made  any  gift  of  that  part.     As  then  it  is  not  given  away,  there 
is  nothing  to  take  it  from  the  heir."     In  Taylor  v.  Taylor,^  Lord 
Chancellor  Cranworth  said :   "  The  law  gives  the  estate  to  the  heir 
notwithstanding  the  direction  of  the  testator,  unless  the  testator 
makes  a  valid  devise  of  it  otherwise.     Of  course  I  do  not  mean 
to  say  that  a  testator  might  not  so  dispose  of  the  proceeds  of  real 
estate  as  to  make  it  go  to  the  next  of  kin.  ...  In  that  case  the 
next  of  kin  would  take,  because  there  would  be  an  express  gift  to 
them  by  the    testator,  but    not  as  an    interpretation  of  words  of 
direction,  such  as  we  have  here."     In  the  cases  cited  in  the  note,^ 
in  which  it  was   also  held  that  the  testator's  land  was  converted 
in  equity  into  money  by  the  will,  and,  therefore,  that  the  heir  took 
as  money  that  portion  of  the  land  the  produce  of  which  was  not 
disposed  of,  if  the  first  proposition  is  correct,  the  second  necessarily 
follows. 

Upon  the  whole,  therefore,  it  may  now  be  considered  as  clear, 
upon  authority  as  well  as  upon  principle,  that  it  is  not  possible 
for  a  testator  so  to  convert  his  land  into  money  by  will,  that  upon 
his  death  it  will  devolve,  by  operation  of  law,  upon  his  personal 
representative  or  next  of  kin,  and,  therefore,  Mr.  Scott's  admission, 
in  Ackroyd  v.  Smithson,  "  that  a  person  may  decide  what  shall 
be  the  nature  of  his  property  after  his  death,  so  as  to  preclude  all 
question  between  real  and  personal  representatives,"'^  is  no  longer 
true  in  its  full  extent.^     It  is  still  true,  however,  upon  authority, 

1  i6  Sim.  124,  129. 

2  3  De  G.  M.  &  G.  190,  197. 

3  Hatfield  v.  Prime,  2  Coll.  204;  White  v.  Smith,  15  Jur.  1096;  Taylor's  Settle- 
ment, In  re,  9  Hare  596;  Bagster  v.  Fackerell,  26  Beav.  469;  Wilson  v.  Coles,  28 
Beav.  215;  Attorney  General  v.  Lomas,  L.  R.  9  Exch.  29;  Hamilton  v.  Foot,  Ir.  R.  6 
Eq.  572 ;  Richerson,  In  re,  [1892]  i  Ch.  379.  For  comments  on  the  foregoing  cases, 
see  infra,  p.  355. 

*  See  supra,  p.  336. 

5  And  vet,  as  late  as  1833,  Sir  John  Leach,  M.  R.,  in  Jessopp  v.  W^atson,  i  Myl.  &  K. 
665.  says  (674) :  "  A  testator  may.  if  he  pleases,  direct  that  the  produce  of  his  real 
estate  which  he  orders  to  be  sold,  shall,  in  all  events  and  for  all  purposes,  be  con- 
sidered as  if  it  had  been  personal  estate  at  his  death." 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         349 

that  a  testator  may  by  his  will  convert  his  land  into  money,  not 
merely  for  the  purposes  of  his  will,  but  "out  and  out,"  though 
the  consequence  of  his  so  doing  will  not  be  the  same  as  formerly, 
i.  c.y  instead  of  causing  the  land  to  devolve  upon  the  personal 
representative,  its  only  effect  will  be  to  cause  the  heir  to  take  as 
money  so  much  of  the  land  as  descends  to  him.  It  may  be  added 
that,  as  it  is  no  longer  true,  even  upon  authority,  that  a  testator 
can  so  convert  his  land  by  will  as  to  cause  it  to  devolve,  by  opera- 
tion of  law,  upon  his  personal  representative,  so  it  ought  to  be 
no  longer  true,  upon  authority,  that  a  testator  can  so  convert  his 
land  into  money  by  will  as  to  cause  it  to  devolve,  by  the  same 
will,  as  personal  estate,  unless  it  appears  on  the  face  of  the  will 
that  the  testator  intended  "  personal  estate  "  to  include  the  produce 
of  land  directed  by  the  will  to  be  sold.^ 

That  it  is  still  true,  upon  authority,  though  not  upon  principle, 
that  a  testator  may  by  his  will  convert  his  land  into  money  "  out 
and  out,"  —  a  slight  glance  at -the  authorities  will  sufficiently 
prove.  Thus  in  Berry  v.  Usher,^  decided  twenty-five  years  after 
Ackroyd  v.  Smithson,  Sir  W.  Grant,  M.  R.,  said:  "If  the  char- 
acter of  personal  estate  was  imposed  upon  the  real  estate  to  all 
intents  and  purposes,  the  mere  appointment  of  an  executor  would 
be  sufficient  to  carry  that  property  to  him,  either  for  his  own 
benefit,  or  as  trustee  for  the  next  of  kin."  This  shows  that  that 
learned  judge  then  held  the  law  to  be  as  it  was  admitted  to  be 
by  Mr.  Scott  in  Ackroyd  v.  Smithson;  and  Wright  z'.  Wright^ 
shows  that  he  still  held  the  same  opinion  four  years  later.  And 
yet  the  opinion  thus  expressed  seems  to  be  inconsistent  with 
the  decision  of  Lord  Eldon,  in  Sheddon  v.  Goodrich,*  made 
more  than  two  years  before  Berry  v.  Usher  was  decided.  So 
also  in  Hill  v.  Cock,^  decided  in  1813,  Lord  Eldon,  in  holding 
that  the  heir,  and  not  the  next  of  kin,  was  entitled  to  the  un- 
disposed of  produce  of  land  directed  by  the  testator  to  be  sold, 
treated  the  question  as  being  purely  one  of  intention,  notwith- 
standing his  own  decision  in  Sheddon  v.  Goodrich,  and  Sir  VV. 
Grant's   decision  in   Hooper  v.  Goodwin.^     In  Attorney  General 

1  See  18  Harv.  L.  Rev.  97-101,  supra,  pp.  296-300. 

2  II  Ves.  87,  91.  8  16  Ves.  188. 

4  8  Ves.  481.  6  ,  Ves.  &  B.  173, 

<^  For  some  reason  whfch   I  have  been  unable  to  discover,  Sheddon  v.  Goodrich 

and  Hooper  v.  Goodwin  have  exerted  much  less  influence  over  subsequent  decisions 

upon  equitable  conversion  than,  as  it  seems  to  me,  they  ought  to  have  exerted.     They 

have  seldom  been  cited  to  prove  that  a  testator  cannot  by  his  will  so  convert  his  land 


350        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

if*. 
V.  Holford,^  decided  in  1815,  where  a  testator  devised  an  interest 
in  land  in  trust  to  be  sold  for  purposes  which  wholly  failed,  the 
court  held  that  there  was  a  conversion  of  the  land  "  out  and 
out,"  and  yet  that  it  did  not  devolve  in  equity  upon  the  per- 
sonal representative,  but  upon  a  residuary  devisee,  who,  how- 
ever, took  it  as  personal  estate,  Thomson,  C.  B.,  saying,  if  such 
devisee  had  died  immediately  after  the  testator,  the  land  would 
have  gone  to  his  personal  representative.  In  Bunnett  v.  Foster ^ 
Lord  Langdale,  M.  R.,  said :  "  There  is  no  sufficient  reason  for 
holding  that  a  conversion  out  and  out  was  intended.  Unfortu- 
nately this  is  a  very  vague  expression.  But  the  case  of  the 
heir  does  not  require  it  to  be  laid  down  that  there  can  in  no 
case  be  a  conversion,  except  for  the  purposes  of  an  express 
trust.  It  is  sufficient  to  say  no  intention  is  shown  to  convert 
for  any  other  purposes  than  those  specifically  pointed   out,   and 


into  money  as  to  cause  it  to  devolve  by  operation  of  law  upon  his  personal  r«^presen- 
tative  ;  and  yet  they  seem  to  me  to  constitute  the  only  proof  of  that  propo.sition  of 
which  the  courts  could  avail  themselves  consistently  with  the  views  upon  equitable  con- 
version to  which  they  have  constantly  adhered.  Nor  is  either  of  these  cases  cited  once 
by  Jarman  in  his  chapter  on  equitable  conversion,     i  Jarman,  ist  ed.,  c.  xix. 

While  reading  the  proof  of  this  article,  a  reason  has  occurred  to  me  why  Sheddon 
V.  Goodrich  and  Hooper  v.  Goodwin  have  been  so  little  cited  in  connection  with 
equitable  conversion,  namely,  that  the  courts  never  held  that  equitable  conversion  cre- 
ated by  will  took  effect  prior  to  the  testator's  death  (see  Beauclerk  v.  Mead,  supra, 
p.  i-jo,  n.  3),  and,  therefore,  the  decisions  in  Sheddon  v.  Goodrich  and  Hooper  v.  Good- 
win respectively  threw  no  new  light  upon  the  question  when  such  conversions  take 
effect.  In  fact,  my  difficulty  arose  from  my  not  applying  here  what  I  said  at  the  begin- 
ning of  this  article,  when  attempting  to  explain  the  theory  upon  which  the  courts  held, 
prior  to  Ackroyd  v.  Smithson,  that  land  converted  in  equity  into  money  by  will,  de- 
volved, at  the  testator's  death,  upon  his  executor,  if  not  otherwise  disposed  of,  namely, 
not  because  they  supposed  the  conversion  took  effect  prior  to  the  testator's  death,  but 
because  they  erroneously  assumed  that  the  conversion  consisted  in  a  fictitious  trans- 
mutation of  the  land  into  money  by  equity  itself,  and  hence  they  concluded  that  the 
testator's  heir  or  devisee,  on  whom  the  land  devolved  at  the  moment  of  the  testator's 
death,  became,  at  the  same  moment,  a  trustee  for  his  executor.     See  supra,  p.  332. 

If  the  courts  had  borne  in  mind  from  the  beginning  that  what  a  testator  does,  when 
he  is  said  to  convert  his  land  into  money  by  will,  is  to  direct  the  land  to  be  exchanged 
for  money,  at  the  same  time  creating  in  some  person  a  right  to  have  the  exchange 
made  by  giving  him  some  of  the  money  to  be  received  in  exchange,  or  some  interest 
in  such  money,  and  that  the  equitable  conversion  is  coextensive  only  with  the  right  or 
rights  so  created,  the  view  which  prevailed  prior  to  Ackroyd  v.  Smithson  could  never 
have  come  into  existence,  and  if  Lord  Thurlow,  when  he  decided  Ackroyd  v.  Smithson, 
instead  of  temporizing  as  he  did,  had  exposed  and  rooted  out  the  misconception  and 
error  upon  which  the  then  existing  view  was  founded,  he  would  have  rendered  an 
incalculable  service  to  the  English-speaking  world. 

1  I  Price  426.  2  7  Beav.  540,  543. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         351 

which  have  failed."  In  White  v.  Smith  ^  a  testator  devised  land 
in  trust  for  his  son  for  life,  and  then  in  trust  for  sale,  the  pro- 
ceeds, after  payment  of  legacies,  to  be  invested,  and  the  income  to 
be  applied  to  the  maintenance  of  the  children  of  said  son,  each 
child  to  receive  his  share  at  twenty-one ;  and  the  son  having  died 
unmarried,  and  the  land  not  having  been  sold,  Knight-Bruce,  V.  C, 
declared  the  trust  for  sale  to  be  absolute  and  unconditional,  and 
hence  the  land  to  be  converted  into  money  in  equity,  without 
reference  to  the  disposition  of  the  proceeds  of  the  sale,  and, 
therefore,  the  heir  took  the  same  as  money.  In  Wall  v.  Colshead,"^ 
a  testator  devised  life  estates  in  certain  lands,  at  the  termination 
of  which  he  devised  the  same  to  his  executors  to  be  sold,  and  the 
proceeds,  divided  among  the  children  of  the  tenants  for  life, — 
who,  however,  died  without  issue,  and  the  court  held  that  the 
land  was  converted  into  money  "  out  and  out,"  and,  therefore, 
though  it  went  to  the  testator's  residuary  devisees,^  yet  they  took 
it  as  money.  Knight-Bruce,  L.  J.,  said:  '"1  think  the  trust  for 
sale  was  not  cofxditional  but  absolute."  Turner,  L.  J.,  said  :  "  The 
question  is  whether  the  testator  intended  a  conversion  out  and  out, 
or  only  for  the  purpose  of  division  between  the  children  of  the 
tenants  for  life.  On  the  death  of  a  tenant  for  life,  leaving  children, 
all  of  whom  were  under  twenty-one,  the  trust  for  sale  would  arise, 
though  the  shares  of  the  children  would  not  be  indefeasibly  vested. 
By  the  clause  immediately  following  the  residuary  gift  in  the  will, 
if  a  tenant  for  life  died  under  twenty-one,  there  was  to  be  a  sale 
for  the  benefit  of  other  persons  than  the  children  of  the  tenant 
for  life  so  dying.  Therefore  the  testator  has  shown  that  he  did 
not  intend  to  limit  the  conversion  to  the  case  of  there  being  chil- 
dren of  the  tenant  for  life  of  each  property,  and  the  trust  for  con- 
version not  being  limited  to  that  event,  I  do  not  see  how  to  limit 
it."  It  will  be  seen,  therefore,  that  the  court  treated  the  question 
whether  the  conversion  was  "  out  and  out "  or  only  for  the  purposes 
of  the  will,  as  depending  entirely  upon  the  testator's  intention 
as  to  the  circumstances  under  which  the  property  should  be  sold. 
Lastly,  in  Attorney  General  v.  Lomas,^  where  a  testator  devised 
his  lands  to  trustees  in  trust  to  be  sold,  but  the  purposes  of  the 
sale  failed,  the  court  held  that  the  trust  for  sale  was  absolute, 
whether  any  effective  disposition  was  made  of  the  proceeds  of  the 

1  15  Jur.  1096.  2  2  De  G.  &  J.  6S3,  6S8,  6S9. 

3  See  comments  on  Attorney  General  v.  Holford,  iiifra,  p.  356. 
*  L.  R.  9  Exch.  29. 


352        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

sale  or  not,  i.  e.,  that  the  land  was  converted  into  money  "  out 
and  out,"  and,  therefore,  though  it  went  to  the  heir,  she  took  it 
as  money. 

What,  then,  are  the  changes  which  the  authorities  show  to  have 
taken  place,  in  respect  to  the  equitable  conversion  of  land  into 
money  by  will,  since  Ackroyd  v.  Smithson  was  decided? 

1.  As  to  what  constitutes  such  equitable  conversion  there  has 
been  no  change.  It  is,  and  always  was  held  that  the  equitable 
conversion  of  land  into  money  by  will  is  caused  by  the  declared 
intention  of  the  testator  to  have  his  land  sold  after  his  death ;  and 
this  intention  may  be  declared  by  directing  something  to  be  done 
with  the  land  which  will  render  a  sale  of  it  necessary. 

2.  Prior  to  Ackroyd  v.  Smithson  evidence  of  such  intention 
seems  to  have  been  looked  for  only  in  such  directions  as  the  will 
contained  respecting  a  sale  of  the  land,  and  the  mode  of  dealing 
with  and  managing  the  proceeds  of  the  sale  prior  to,  or  indepen- 
dent of,  any  gift  of  the  latter,  while,  since  Ackroyd  v.  Smithson  was 
decided,  such  evidence  has  been  primarily  looked  for  in  the  gift  or 
gifts  which  the  testator  makes  of  the  proceeds  of  the  sale;  and,  as 
evidence  of  an  intention  to  have  the  land  sold,  a  gift  which  does 
not  take  effect  is  regarded  as  no  gift. 

3.  In  the  absence  of  evidence  to  the  contrary  it  will  be  pre- 
sumed that  the  testator  intended  to  have  so  much  only  of  the  land 
sold  as  his  effective  gifts  of  the  proceeds  of  the  sale  shall  render 
necessary,  and  hence  so  much  of  the  land  only  will  be  converted 
in  equity, —  a  rule,  however,  which  had  no  existence  prior  to 
Ackroyd  v.  Smithson. 

4.  Prior  to  Ackroyd  v.  Smithson,  as  no  attention  was  paid  to  a 
testator's  purpose  or  object  in  directing  a  sale  of  his  land,  and 
hence  a  direction  to  sell  for  one  purpose  was  treated  as  a  direction 
to  sell  for  all  purposes,  so  a  direction  to  sell  for  any  purpose  was 
regarded  as  causing  an  equitable  conversion  for  all  purposes. 
Since  Ackroyd  v.  Smithson,  however,  the  doctrine  has  become 
established  that  an  equitable  conversion  by  will  is  presumptively 
coextensive  only  with  the  purposes  for  which  the  sale  is  directed, 
and  hence  the  distinction  has  become  established  between  an  equi- 
table conversion  for  the  purposes  of  the  will  only,  and  an  equitable 
conversion  "  out  and  out " ;  and  as  the  presumption  is  that  a  tes- 
tator intends  the  land  to  be  sold  only  for  the  purposes  which  he 
expresses  in  his  will,  so  the  presumption  is  that  he  intends  to  create 
an  equitable  conversion  for  the  purposes  of  his  will  only. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         353 

5.  It  has  always  been  held  that  a  direction  by  a  testator  in  his 
will  to  sell  his  land  at  all  events  will  be  valid  and  binding,  whether 
he  make  a  gift  of  the  proceeds  of  the  sale,  or  of  any  part  thereof, 
or  any  interest  therein,  or  not.  While,  however,  prior  to  Ackroyd 
V.  Smithson  any  unqualified  direction  to  sell  was  presumed  to  be  a 
direction  to  sell  at  all  events,  since  that  case  such  a  direction  is 
presumed  to  be  a  direction  to  sell  only  for  the  purposes  expressed 
in  the  will,  /.  e.,  only  to  such  extent  as  the  gifts  which  are  made  of 
the  proceeds  of  the  sale  shall  render  necessary,  and  hence  to  cause 
an  equitable  conversion  only  to  the  same  extent. 

6.  While  it  has  always  been  held  that  a  testator  could  by  his  will 
require  his  land  to  be  sold  at  all  events,  and  could  thus  convert  it 
into  money  in  equity  "  out  and  out,"  yet  a  conversion  "  out  and 
out"  has  meant  less  since  Ackroyd  v.  Smithson  than  it  did  before; 
for,  while  such  a  conversion  before  Ackroyd  z-.  Smithson  caused 
any  portion  of  the  land  the  produce  of  which  was  not  disposed  of, 
to  go  to  the  testator's  personal  representative,  it  now  has  merely 
the  effect  of  causing  the  heir  to  take  the  same  as  money. 

7.  But,  while  the  authorities  clearly  show  that  the  effect  pro- 
duced by  a  conversion  of  land  into  money  in  equity  has  undergone 
the  change  indicated  in  paragraph  6,  they  give  no  satisfactory 
reason  for  such  change,  though  the  true  reason  seems  to  be  that 
the  courts  now  recognize  the  fact,  as  they  did  not  prior  to  Ackroyd 
v.  Smithson,  nor  till  long  afterwards,  that  an  equitable  conversion 
of  land  by  will  can  never  come  in  time  to  intercept  the  descent  of 
the  land  to  the  testator's  heir. 

8.  The  authorities  show  that,  except  so  far  as  the  contrary  is 
indicated  in  paragraph  7,  the  intention  of  the  testator  is  still  as 
supreme  in  respect  to  equitable  conversions  by  will  as  it  ever  was, 
and  I  am,  therefore,  now  prepared  to  give  an  answer  to  the  ques- 
tion with  which  my  last  article  concluded,^  namely,  what  is,  upon 
authority,  the  measure  of  the  extent  of  the  equitable  conversion  of 
land  into  money  caused  by  a  will?  And  the  answer  is  that  the 
only  measure  of  such  a  conversion  is  the  intention  of  the  testator 
as  to  the  sale  of  the  land  ;  for  it  is  held  that  a  testator  can  by  his 
will  convert  his  land  into  money  without  making  any  gift  of  the 
proceeds  of  the  sale  of  such  land,  and  consequently  without  creat- 
ing any  right  in  anyone  to  have  the  land  sold,  and  though  a  sale 
of  the  land  will  leave  the  ownership  of  the  proceeds  of  the  sale 
where  the  ownership  of  the  land  was  when  the  sale  was  made. 


1  See  i8  Harv.  L.  Rev.  270,  sicpra,  p.  329. 
23 


354        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

9.  In  spite  of  what  is  said  in  paragraph  8,  it  has  ahvays  been 
assumed,  and  within  a  recent  period  has  been  held,i  that  a  direc- 
tion to  sell  is  a  si)ie  qua  iion  of  every  equitable  conversion  of  land 
by  will.  Moreover,  it  has  always  been  held  that  a  conditional 
direction  to  sell  land  can  cause  no  equitable  conversion  until  the 
condition  is  satisfied  ;2  and  the  same  is  true  of  a  direction  to  sell 
which  is  not  intended  to  be  imperative,^  i.  c,  that  it  can  cause  no 
equitable  conversion.  A  testator  may,  however,  make  his  direction 
to  sell  his  land  as  absolute  and  as  imperative  as  he  pleases,  and  yet, 
if  he  makes  no  gift  of  the  proceeds  of  the  sale,  his  direction  to  sell 
cannot  be  enforced;  still  less  can  it  be  specifically  enforced.  In 
short,  we  are  told  that  a  trust  for  sale  is  a  sine  qua  non  of  every 
equitable  conversion  by  will,  and  yet  that  there  need  be  no  cestid 
que  trust,  nor  any  power  of  enforcing  the  trust.  It  would  seem, 
therefore,  that  the  courts  would  have  been  more  consistent  if  they 
had  held  intention  alone  to  be  sufficient  to  create  an  equitable 
conversion  by  will,  though,  in  that  case,  consistency  would  be  the 
only  virtue  that  could  be  attributed  to  them. 

10.  On  the  whole,  if  regard  be  had  to  authority  alone,  the 
differences  between  the  law  as  it  stands  to-day  and  as  it  stood  prior 
to  Ackroyd  v.  Smithson  in  respect  to  equitable  conversion  by  will, 
are  much  less  than  they  have  generally  been  supposed  to  be ;  nor 
ought  this  to  be  a  matter  of  surprise  to  anyone  who  reflects  that 
neither  the  counsel  for  the  successful  party  in  Ackroyd  v.  Smith- 
son,  nor  the  judge  who  decided  that  case,  founded  their  argument 
upon  anything  else  than  the  intention  of  the  testator  and  the  exist- 
ing authorities. 

Nothing  has  hitherto  been  said  as  to  the  influence  exerted  by 
Ackroyd  v.  Smithson  upon  the  equitable  conversion  of  money  into 
land  by  will,  and  not  much  need  be  said.  The  question  whether 
the  change  effected  by  Ackroyd  v.  Smithson,  as  to  the  conversi(Wi 
by  will  of  land  into  money,  should  be  extended  by  analogy  to  the 
equitable  conversion  by  will  of  money  into  land,  arose,  for  the  first 

1  Hyett  V.  Mekin,  L.  R.  25  Ch.  D.  735. 

2  Taylor's  Settlement,  In  re,  9  Hare  596;  Hardy,  Ex  parte,  30  Beav.  206;  Raw, 
/«  re,  L.  R.  26  Ch.  D.  601. 

'^  Stamper  z/.  Millar,  3  Atk.  212  ;  Doughty  v.  Bull,  2  P.  Wms.  320.  It  seems  to  have 
been  generally  supposed  that  a  conditional  direction  to  sell  land,  or  a  direction  which 
is  not  intended  to  be  imperative,  does  not  cause  an  equitable  conversion  because  it 
does  not  show  an  intention  to  have  a  sale  made  at  all  events  ;  but  the  true  reason 
seems  to  be  that  such  a  direction  creates  no  right  to  have  a  sale  made,  and  imposes 
no  obligation  to  make  a  sale. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         355 

time,  fifty-six  years  after  Ackroyd  v.  Smithson  was  decided,^  in  the 
case  of  Cogan  v.  Stevens,^  and  was  decided  in  the  affirmative  by 
Sir  C.  C.  Pepys,  M.  R.  (afterwards  Lord  Cottenham),  notwith- 
standing an  apparent  decision  to  the  contrary  ^  by  Lord  Somers 
and  the  House  of  Lords;  and  his  decision  has  since  been 
followed.* 

As  the  cases  cited  in  this  article  have  been  considered  almost 
wholly  from  the  point  of  view  of  authority,  it  may  not  be  out  of 
place  to  make  a  few  remarks  upon  some  of  them  from  the  point 
of  view  of  what  is  conceived  to  be  principle.  Thus,  in  Ackroyd  v. 
Smithson,  there  was,  upon  principle,  no  equitable  conversion  of 
that  portion  of  the  land  the  produce  of  which  was  intended  for  the 
two  deceased  legatees,  as  there  was  no  one  who  had  a  "  right"  to 
have  that  portion  of  the  land  sold,  and  to  receive  the  proceeds  of 
its  sale ;  nor  can  there  ever  be  an  equitable  conversion  in  favor 
of  the  person  who  makes  such  conversion,  or  in  favor  of  his  heir  as 
such.  Therefore,  that  portion  of  the  land  descended  in  equity, 
at  the  testator's  death,  to  his  heir,  in  whose  hands  it  was  land  until 
its  actual  sale,  when  it  became  money  for  all  purposes.^  The  same 
is  also  true  in  Robinson  v.  Taylor,*^  and  Williams  v.  Coade.'  In 
Wright  V.  Wright,^  also,  there  seems  to  have  been  no  equitable 
conversion,  except,  possibly,  in  favor  of  the  testator's  wife  for  her 
life,  and,  therefore,  the  land  ought  to  have  been  held  to  have  de- 
scended in  equity,  at  the  testator's  death,  to  his  heir,  subject  to  the 
testator's  debts  and  to  the  life  interest  of  his  wife.  In  Smith  v. 
Claxton,^  there  was,  for  the  reason  already  stated,  no  equitable 
conversion  as  to  the  testator's  heir  as  such,  and,  therefore,  it  was 
erroneously  held  that  he  took  as  money  the  one-half  of  the  land 
secondly  devised  as  to  which  the  purpose  of  the  devise  had  failed. 
In  Hill  V.  Cock^^  it  seems  there  was  no  equitable  conversion,  the 
land  having  merely  been  charged  with  debts  and  legacies."     The 


1  This  may  serve  to  remind  the  reader  that,  since  Ackroyd  v.  Smithson,  equitable 
conversions  by  will  of  money  into  land  have  been  infrequent,  as  compared  with 
equitable  conversions  of  land  into  money. 

2  I  Beav.  4S2,  n.     See  also  supra,  p.  334,  n.  i. 

8  Fletcher  v.  Chapman,  3  Bro.  P.  C,  Tomlin's  ed.,  i. 

*  Reynolds  v.  Goodlee,  John.  536,  582;  Curteis  v.  Wormald,  10  Ch.  D.  172.  See 
also,  18  Harv.  L.  Rev.  14-19,  supra,  pp.  273-278. 

5  See  18  Harv.  L.  Rev.  5,  6,  supra,  pp.  264,  265. 

6  2  Bro.  C.  C.  5S9;  and  see  iS  Harv.  L.  Rev.  6,  supra,  p.  265. 
''   10  Ves.  500.  *  16  Ves.  188. 

9  4  Madd.  484.  "  i  Ves.  &  B.  173. 

11  1  shall  hereafter  endeavor  to  show  that  a  direction  to  sell  land,  whether  by  will  or 


356        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

same  is  also  true  of  Maugham  v.  Mason,^  except  that  the  land  was 
there  charged  with  legacies  only.  In  Attorney  General  v.  Hol- 
ford,^  the  correct  view  would  seem  to  have  been  that  as  all  the 
purposes  of  the  sale  failed,  the  trust  for  conversion  also  failed, 
and,  as  there  was  no  equitable  conversion  of  the  land,  that  conse- 
quently the  equitable  ownership  of  the  land,  the  legal  ownership 
of  which  vested  in  the  trustees,  either  descended  to  the  heir,  or 
passed  to  the  residuary  devisee.  Under  no  circumstances  can  a 
residuary  devisee,  as  such,  acquire  a  right  to  have  land  sold,  and 
to  receive  the  proceeds  of  the  sale,  or  any  part  of  such  proceeds.^ 
In  Jessopp  V.  Watson  ^  there  was  no  equitable  conversion,  as  the 
purposes  of  the  sale  all  failed,  except  the  payment  of  debts,  lega- 
cies, and  annuities,  and  the  latter  constituted  a  mere  charge.^  For 
the  other  reasons  already  given  also,  there  was  no  equitable  con- 
version as  to  the  testator's  heir,  and,  therefore,  the  latter  took  the 
land  as  land.  In  Phillips  v.  Phillips^  it  was  erroneous  to  hold  that 
the  one-fifth  of  the  land  the  produce  of  which  was  intended  for 
the  deceased  brother,  went  to  the  testator's  next  of  kin ;  if  for  no 
other  reason,  because  there  was  no  equitable  conversion  of  that 
portion  of  the  land.  The  same  is  also  true,  mutatis  mtitandis,  of 
Fletcher  v.  Chapman.'^  In  Flint  v.  Warren  ^  it  seems  clear  that 
there  was  no  equitable  conversion  of  the  land  into  money,  as  the 
will  merely  charged  the  land  with  the  payment  of  the  testator's 
debts  and  legacies  in  aid  of  the  personal  estate,  and  it  appeared 
that  the  latter  was  abundantly  sufficient  to  pay  them  all.^  In 
Shallcross  v.  Wright,-^*^  also,  the  land  was  merely  charged  with 
debts  and  legacies,  and,  therefore,  there  was  no  equitable  conver- 
sion of  it  into  money.  In  Hatfield  v.  Prime  ^^  the  testator's  heir 
took  as  land  that  portion  of  the  land  the  produce  of  which  had 
not  been  effectively  disposed  of,  there  having  been  no  equitable 
conversion  of  it  into  money,  nor,  indeed,  any  equitable  conversion 
of  any  of  the  land  as  to  the  testator's  heir.     In  Wilson  v.  Coles  ^^ 

by  deed,  for  the  mere  purpose  of  satisfying  a  charge  or  charges  thereon,  never  causes 
an  equitable  conversion.     And  see  i8  Harv.  L.  Rev.  83-93,  •i'«/^«.  PP-  282-291. 

1  I  Ves.  &  B.  410.     See  also  supra,  p.  279,  n.  3. 

2  I  Price  426. 

8  See  stipra,  pp.  293,  294.  *  i  Myl.  &  K.  665. 

6  See  supra,  p.  355,  n.  il.  *  i  Myl.  &  K.  649. 

T  3  Bro.  P.  C,  Tomlin's  ed.,  i.  »  14  Sim.  554;  16  Sim.  124. 

^  See  supra,  p.  355,  n.  11. 

10  12  Beav.  505.     See  also  sttpra,  p.  355,  n.  11. 

"  2  Coll.  204.  ^2  28  Beav.  215. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         357 

there  was  no  equitable  conversion  of  the  land,  except  as  to  the 
wife,  and  even,  as  to  her,  there  was  an  equitable  conversion  for  her 
life  only.  On  the  testator's  death,  therefore,  the  land  immediately 
descended  to  his  two  co-heirs,  subject  to  the  wife's  life  estate,  and 
when  one  of  the  co-heirs  died,  her  share  went  to  her  heir,  and  was 
land  in  the  hands  of  the  latter  until  its  actual  sale,  when  it  became 
money  for  all  purposes.^  In  Attorney  General  v.  Lomas,'-^  no 
right  was  created  in  any  one  to  have  the  land  sold,  and,  therefore, 
there  could  be  no  equitable  conversion.  Nor  could  there  be  any 
equitable  conversion  in  favor  of  the  testator's  heir,  even  if  there 
were  one  in  favor  of  others.  In  Hamilton  v.  Foote  ^  the  testator's 
land  descended  at  her  death  to  her  heir,  subject  only  to  the  life 
estate  devised  to  the  testator's  sister,  and  to  the  two  legacies  of 
;{J'500  each.  There  was  no  equitable  conversion  of  any  of  the  land 
as  to  any  person,  nor  could  any  of  the  land  be  sold,  if  the  heir 
chose  to  pay  the  two  legacies,  nor  could  any  more  be  sold,  under 
any  circumstances,  than  enough  to  pay  those  legacies.  In  /;/  re 
Richerson*  there  was  no  equitable  conversion  of  the  testator's  land, 
except  as  to  the  tenants  for  life  respectively,  and,  even  as  to  them, 
only  to  the  extent  of  their  respective  life  interests.  At  the  testa- 
tor's death,  therefore,  the  land  descended  to  his  sister  and  heir, 
subject,  however,  to  the  life  interests  and  to  the  right  of  the  respec- 
tive tenants  for  life  to  have  the  land  sold.  As  to  so  much  of 
the  land  as  was  actually  sold  between  the  testator's  death  and  the 
death  of  the  sister,  the  latter's  title  to  the  land  was  devested  by  the 
sale,  she  acquiring  a  title  to  the  purchase-money  instead,  and,  on 
the  death  of  the  sister,  so  much  of  the  land  as  remained  unsold 
descended  to  her  heir,  and  the  produce  of  what  had  been  sold 
devolved  upon  her  personal  representative,  and,  as  to  so  much  of 
the  land  as  was  sold  between  the  sister's  death  and  the  death  of 
the  surviving  tenant  for  life,  the  title  of  the  sister's  heir  to  the  land 
was  devested,  and  he  acquired  a  title  to  the  purchase-money 
instead.  In  Wall  v.  Colshead,^  the  purposes  of  the  sale  having  all 
failed,  there  was  no  equitable  conversion  of  the  land,  and  the  latter 
passed,  at  the  testator's  death,  to  his  residuary  devisees,  who  took 
it  as  land,  though  subject  to  the  life  interests  of  the  tenants  for  life. 
So  also,  in  White  v.  Smith,*^  the  purposes  of  the  sale  all  failed,  and 

1  See  supra,  p.  265.  2  L.  R.  9  Exch.  29. 

8  Ir.  R.  6  Eq.  572.  4  [1S92]  i  Ch.  379. 

6  2  De  G.  &  J.  683.     See  also  supra,  p.  351. 

*  15  Jur.  1096.     See  supra,  p.  351. 


358        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

hence  the  land  descended  to  the  testator's  heir,  who  took  it  as 
land,  though  subject  to  legacies.  In  Iti  re  Taylor's  Settlement,^ 
a  testator  devised  his  land  in  trust  to  be  sold,  and  its  produce 
divided  among  his  seven  children,  and  one  of  the  children  having 
died  before  the  testator,  it  was  properly  held  that  the  one-seventh 
of  the  land,  the  produce  of  which  was  intended  for  the  deceased 
child,  went  to  the  testator's  heir,  but  improperly  held  that  the 
latter  took  it  as  money .^ 

1  9  Hare  596-  Bagster  v.  Fackerell,  26  Beav.  469,  is  subject  to  the  same  observa- 
tions as  Taylor's  Settlement,  In  re.  In  that  case,  however,  it  would  seem,  from  the 
length  of  time  that  had  elapsed  since  the  testator's  death,  that  the  land  must  have 
been  actually  sold,  —  in  which  case,  of  course,  the  heir  would  take  the  money  as 
money.     Compare  also  Ackroyd  v.   Smithson,  supra,  p.  355,  and  Smith  v.  Claxton, 

P-  355- 

2  In  Clarke  v.  Franklin,  4  Kay  &  J.  257,  where  a  trust  for  converting  land  into  money 
was  created  by  deed,  but  all  the  purposes  of  the  trust  failed  ab  i7iitio,  except  the  pay- 
ment of  six  sums  of  50/.  each,  and  one  sum  of  20/.,  to  persons  named,  it  was  held  that 
the  equitable  interest  in  the  land  resulted  immediately  to  the  grantor,  subject  only  to 
the  payment  of  those  seven  sums,  but  that  the  same  was  money  in  his  hands,  the 
land  being  converted  into  money  in  equity  the  moment  that  the  deed  was  delivered. 
It  was,  therefore,  held  that  the  grantor,  by  directing  the  land  to  be  sold,  i.e..,  exchanged 
for  money,  had  immediately  converted  it  into  money,  so  that  it  became  money  in  his 
own  hands.  This,  however,  was  not  merely  a  complete  non-sequitur,  /.  e.,  a  thing 
which  did  not  in  the  least  follow  from  the  direction  to  sell  the  land,  but  it  was  a  legal 
impossibility.  On  the  delivery  of  the  deed  the  legal  title  to  the  land  passed  to  the 
trustee,  the  equitable  interest  remaining  in  the  grantor;  and  at  the  same  moment,  ac- 
cording to  the  decision,  there  was  a  transmutation  of  this  equitable  interest  from  land 
into  money.  Such  a  transmutation  could  be  made,  however,  only  by  equity  itself,  and 
equity  could  make  it  only  for  an  adequate  cause,  and  it  was  not  pretended  that  any 
cause  existed.  Moreover,  such  a  transmutation  would  be  entirely  independent  of  the 
direction  to  sell  the  land,  and  inconsistent  with  it.  It  may  be  added  that  the  seven 
persons,  each  of  whom  was  to  receive  a  small  sum  out  of  the  proceeds  of  the  sale,  had 
nothing  to  do  with  the  equitable  conversion,  having  merely  a  charge  on  the  land,  for 
the  amounts  coming  to  them  respectively. 


ARTICLE     XV.^ 


Equitable  Conversion. 

V. 

AT  the  beginning  of  the  preceding  article,^  it  is  stated  that, 
previous  to  Ackroyd  v.  Smithson,  it  was  held  that  the  land 
of  a  deceased  person  which  had  been  converted  in  equity  into 
money  by  his  will  became  in  consequence  assets  for  the  payment 
of  his  debts,  and  that  the  money  of  a  deceased  person  which  had 
been  converted  in  equity  into  land  by  his  will  ceased  in  conse- 
quence to  be  assets  for  the  payment  of  his  debts.  To  understand 
the  full  force  of  this  statement,  the  reader  must  remember  that 
previous  to  3  &  4  Wm.  4,  c.  104,  the  land  of  a  deceased  person 
was  not  in  England  assets  for  the  payment  of  his  simple  contract 
debts,  so  that  the  effect  of  the  foregoing  statement  is  that  a  testator 
could  by  converting  his  land  into  money  by  his  will,  enable  his 
simple  contract  creditors  to  obtain  payment  out  of  his  land  of  what 
was  due  to  them  respectively,  though  by  law  such  creditors  would 
go  unpaid  unless  the  testator  left  sufficient  personal  estate  to  pay 
them ;  and  so  that  a  testator  could,  by  converting  his  money  in 
equity  into  land  by  his  will,  deprive  his  simple  contract  creditors 
of  the  right  which  the  law  gave  them  to  be  paid  out  of  such  money 
what  was  due  to  them  respectively.  That  the  courts  should  have 
held  that  the  conversion  of  land  into  money  by  will  made  the  land 
available  for  the  payment  of  all  the  testator's  debts  is  not  surpris- 
ing, but  that  they  should  have  held  that  the  conversion  of  money 
into  land  by  will  enabled  a  testator  to  deprive  his  simple  contract 


1  19  Harv.  L.  Rev.  79.  2  Supra,  p.  330. 


36o        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.  ' 

creditors  of  their  legal  right  to  be  paid  out  of  his  money  is  very 
surprising.  That  such  was,  however,  held  to  be  the  law,  there 
seems  to  be  no  doubt,  though  the  reported  cases  ^  are  not  very 
conclusive.  Are  these  cases  justified  by  the  authorities  which  de- 
cided that  land  converted  into  money  by  will  devolved  as  money 
at  the  death  of  the  testator,  and  that  money  converted  into  land 
by  will  devolved  as  land  at  the  death  of  the  testator?  No,  it  seems 
not,  for  the  latter  did  not  involve  holding  that  an  equitable  con- 
version by  will  takes  place  prior  to  the  testator's  death,  while  it 
seems  clear  that  the  question  whether  any  particular  property  of  a 
deceased  person  is  or  is  not  assets  for  the  payment  of  his  debts  de- 
pends upon  the  quality  of  that  property  when  the  testator  dies.  To 
hold,  therefore,  that  the  land  of  a  deceased  person  is  assets  for  the 
payment  of  his  simple  contract  debts  because  it  was  converted  in 
equity  into  money  by  his  will,  is  to  hold  that  the  conversion  took 
effect  during  the  testator's  lifetime,  —  which  is  impossible.  To  hold 
that  the  money  of  a  deceased  person  is  not  assets  for  the  payment 
of  his  simple  contract  debts,  because  it  was  converted  in  equity 
into  land  by  his  will,  is  to  hold  that  a  testator  can  effect,  by  con- 
verting his  money  into  land  by  his  will,  what  he  could  not  effect 
by  a  direct  and  absolute  bequest  of  the  money. 

In  Sweetapple  v.  Bindon,^  in  which  a  testator  directed  his  execu- 
tor to  lay  out  .^300  in  the  purchase  of  land,  and  to  settle  the  land 
(as  the  court  held)  upon  the  testator's  daughter  in  tail,  and  the 
daughter  married  and  had  issue,  but  she  and  her  issue  were  both 
dead,  and  the  money  not  having  been  laid  out,  her  husband  filed 
a  bill  to  have  the  money  laid  out  and  the  land  settled  on  him  for 
his  life,  as  tenant  by  the  curtesy,  or  to  have  the  interest  of  the 
money  paid  to  him  during  his  life,  the  court  decreed  the  money 
to  be  considered  as  land,  and  the  plaintiff  to  have  it  for  life  as 
tenant  by  the  curtesy.  But,  though  the  case  seems  always  to 
have  been  regarded  as  well  decided,  it  seems  impossible  to  sup- 
port it  on  principle.  If  the  money  had  been  laid  out  during  the 
daughter's  lifetime,  of  course  there  would  have  been  no  difficulty, 
even  though  the  land  had  not  been  settled  on  the  daughter  as 
directed,  but,  after  the  death  of  the  daughter  and  her  issue,  there 
was  no  one  who  could  compel  the  executor  to  lay  the  money  out, 

1  Fulham  v.  Jones,  2  Eq.  Ca.  Abr.  250,  pi.  3,  296,  pi.  7,  29S,  pi.  10,  note,  7  Vin. 
Abr.  44;  Whitwick  v.  Jermin,  cited  in  Earl  of  Pembroke  v.  Bowden,  3  Ch.  [217]  115, 
2  Vern.  52,  58;  Gibbs  v.  Ougier,  12  Ves.  413. 

2  2  Vern.  536. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         36 1 

—  not  the  husband,  as  he  was  not  one  of  those  for  whose  benefit 
the  duty  was  imposed  upon  the  executor. 

The  courts  would  also  undoubtedly  have  declared  that,  on  the 
death  of  a  husband,  who  is  entitled  to  have  money  laid  out  in  the 
purchase  of  land,  and  to  have  the  land  settled  upon  him  in  tail  in 
possession,  his  wife  would  be  entitled  to  dower,  but  for  the  rule 
which  disables  a  wife  from  being  endowed  out  of  an  equitable 
interest.  This  view  is,  however,  open  to  the  same  objection  as 
the  decision  in  Sweetapple  v.  Bindon. 

In  a  former  article,  when  speaking  of  the  ordinary  bilateral  con- 
tract for  the  purchase  and  sale  of  land  I  stated  ^  that  that  was 
the  only  species  of  contract  "  in  which  an  agreement  to  buy  or  sell 
land  is  alone  sufficient  to  create  an  equitable  conversion.  Such 
a  contract  is  also  believed  to  furnish  the  only  instance  of  an  equi- 
table conversion  which  is  always  coextensive  with  the  actual  con- 
version which  is  agreed  or  directed  to  be  made." 

It  seems  desirable  that  the  two  statements  contained  in  this  pas- 
sage should  be  a  little  enlarged  upon.  i.  The  only  other  species 
of  contract  in  which  it  is  certain  that  an  agreement  to  buy  or  sell 
land  forms  an  element  in  an  equitable  conversion  is  a  unilateral 
covenant  to  lay  out  money  in  the  purchase  of  land  and  to  settle 
the  land,  or  to  sell  land  and  settle  the  proceeds  of  the  sale,  and  we 
have  seen  2  that  a  covenant  to  lay  out  money  in  the  purchase  of 
land  or  to  sell  land,  will  not  cause  an  equitable  conversion  nor 
even  constitute  a  binding  contract,  unless  it  be  followed  up  by  a 
covenant  to  settle  the  land  to  be  purchased,  or  the  proceeds  of 
the  land  to  be  sold.  Why,  then,  is  this  difference  between  a  bi- 
lateral contract  to  buy  and  sell  land,  and  a  unilateral  covenant  to 
buy  or  sell  land?  It  is  because  of  the  different  effect  produced  by 
the  performance  of  the  two  contracts.  The  mutual  performance 
of  the  bilateral  contract  causes  a  conversion,  not  only  of  the  seller's 
land  into  money,  but  of  the  buyer's  money  into  land,  and  also 
causes  a  transfer,  not  only  of  the  seller's  land  to  the  buyer,  but  of 
the  buyer's  money  to  the  seller.  On  the  other  hand,  the  perform- 
ance of  the  unilateral  covenant,  from  the  fact  that  the  covenant  is 
only  unilateral,  cannot  possibly  cause  more  than  one  conversion 
nor  more  than  one  transfer.  Does  it  do  as  much  as  that?  It  does 
cause  a  conversion  of  the  covenantor's  money  into  land,  or  of  his 
land  into  money,  and  it  does,  in  a  sense,  cause  a  transfer  of  the 

1  Supra,  p.  310.  -  Supra,  pp.  315,  316. 


362        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

money  or  land,  but  not  in  such  a  sense  as  to  make  the  covenant  a 
first  step  towards  such  transfer;   for  the  transfer  which  a  perform- 
ance of  the  covenant  causes  is  to  a  stranger  to  the  covenant,  and 
it  may,  therefore,  in  respect  to  the  effect  produced  by  the  cove- 
nant and  by  its  performance,  be  regarded  as  a  mere  accident ;   for 
the  reader  must  remember  that  the  covenant  is  not  to  buy  land 
of  the  covenantee,  nor  to  sell  land  to  him,  but  is  to  buy  land  of, 
or  to  sell  land  to,  some  third  person  not  a  party  to  the  covenant, 
nor  ascertained  by  it.     It  is  true  that  the  performance  of  the  cove- 
nant will  involve  the  purchase  or  sale  of  land,  and  so  will  practi- 
cally involve,  not  only  the  making,  but  the  mutual  performance, 
of  a  bilateral  contract  for  the  purchase  or  sale  of  land,  but  the  only 
effect  of  such  purchase  or  sale  upon  the  covenantor  will  be  to  make 
him  the  owner  of  the  land  instead  of  the  money,  or  of  the  money 
instead  of  the  land,  and  thus  to  place  him  in  a  situation  to  settle 
the  land  or  the  money,  just  as  if  he  had  purchased  or  sold  the  land 
before  he  made  the  covenant,  —  in  which  case  the  covenant  would 
of  course  be  only  to  settle  the  land  purchased,  or  the  proceeds  of 
the  land  sold.     It  will  be  seen,  therefore,  that,  in  the  case  of  a  uni- 
lateral covenant  to  purchase  and  settle  land,  or  to  sell  land  and 
settle  the  proceeds  of  the  sale,  while  it  is  the  purchase  or  sale  of 
the  land  which  causes  the  conversion,  it  is  the  settlement  of  the 
land   or   money  which   causes  the   transfer  or   alienation  without 
which  the  covenant  cannot  create  an  equitable   conversion.     In 
order,  therefore,  that  a  unilateral  covenant  to  buy  or  sell  land  may 
cause  an  equitable  conversion,  it  must  be  a  covenant  to  buy  land 
of  the  covenantee,  or  to  sell  land  to  him,  or  there  must  be  added, 
to  the  covenant  to  buy  or  sell  land,  a  covenant  to  make  a  gift  of 
some  portion  of  the  land  to  be  purchased,  or  some  interest  therein, 
or  of  some  portion  of  the  proceeds  of  the  land  to  be  sold,  or  of 
some  interest  therein.     The  only  instance  of  the  latter  that  occurs 
to  me  is  the  covenant,  already  referred  to,  to  lay  out  money  in  the 
purchase  of  land  and  to  settle  the  land,  or  to  sell  land  and  settle 
the  proceeds  of  the  sale;   and  the  only  instance  of  the  former  that 
occurs  to  me  is  the  unilateral  contract  to  sell  land  which  is  com- 
monly known  as  the  giving  of  an  option.^     Such  a  contract  is  a 
unilateral  agreement  to  sell  land  at~tHe  price,  and  on  the  terms, 
stated  in  the  contract,  without  any  agreement  by  the  other  party 
to  the  contract  to  purchase  the  land.     The  payment  of  the  price, 

1  Supra,  p.  269  ei  seq. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         3^3 

therefore,  is  merely  a  condition  of  the  latter's  right  to  have  the 
land.  Still,  such  a  contract  would  seem,  in  theory,  to  cause  an 
equitable  conversion  in  favor  of  the  holder  of  the  option,  but,  in 
the  case  of  the  latter's  death,  the  only  right  that  would  devolve 
upon  any  one  would  be  the  conditional  right  to  have  the  land  on 
paying  the  price,  and  whether  that  right  would  devolve  in  equity 
upon  the  heir  or  the  personal  representative  of  the  deceased  is  at 
least  doubtful,  and  I  am  not  aware  that  there  is  any  authority  on 
the  point. 

2.  The  other  statement  contained  in  the  passage  quoted  above 
is  that  a  contract  for  the  purchase  and  sale  of  land  furnishes  the 
only  instance  of  an  equitable  conversion  which  is  always  coex- 
tensive with  the  actual  conversion  agreed  or  directed  to  be  made. 
Why  is  the  equitable  conversion  caused  by  such  a  contract  always 
coextensive  with  the  actual  conversion  which  the  performance  of 
the  contract  involves?  Because  the  reason  why  such  a  contract 
causes  an  equitable  conversion,  or  rather  two  equitable  conver- 
sions, is  that  its  performance  involves  two  alienations  as  well  as 
two  actual  conversions,  and  these  two  alienations  and  two  actual 
conversions  are  made  by  the  same  two  acts,  one  performed  by 
each  of  the  two  parties  to  the  contract,  namely,  a  delivery  of  a 
deed  of  conveyance  of  the  land  by  the  seller  to  the  buyer,  and 
a  delivery  of  the  price  of  the  land  by  the  buyer  to  the  seller. 
Plainly,  therefore,  the  thing  which  the  seller  converts  into  money 
is  the  same  as  the  thing  which  he  alienates  to  the  buyer,  and  the 
thing  which  the  buyer  converts  into  land  is  the  same  as  the  thing 
which  he  alienates  to  the  seller.  It  may  be  added  that  these  two 
acts  regularly  take  effect  at  the  same  instant  of  time,  and  hence 
the  two  alienations  and  the  two  actual  conversions  are  regularly 
made  at  the  same  instant  of  time. 

Why  is  it  that  no  other  equitable  conversion  is  necessarily 
coextensive  with  the  actual  conversion  required  to  be  made  by 
the  covenant  or  direction  which  causes  the  equitable  conversion? 
Because,  in  every  other  case,  the  actual  conversion  of  land  into 
money,  or  of  money  into  land,  must  be  made  before  any  gift  of 
the  money  or  land  into  which  the  conversion  is  made  can  take 
effect;  and,  as  it  is  the  latter  alone  that  causes  the  equitable  con- 
version, it  necessarily  follows  that  the  extent  of  the  equitable 
conversion  is  measured  by  the  extent  of  such  gift  and  not  by  the 
extent  of  the  actual  conversion. 

It  is  proper,  however,  to  mention  another  species  of  agreement 


364         A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

which  has  been  held  to  cause  an  equitable  conversion  of  land  into 
money,  namely,  the  agreement  which  is  sometimes  made  by  each 
of  several  co-owners  of  land  with  the  other  co-owners  to  join  the 
latter  in  making  a  sale  of  the  land.^  If  it  is  true  that  such  an 
agreement  converts  the  land  into  money  in  equity,  it  seems  to  be 
another  instance  of  a  contract  which  converts  land  into  money 
without  any  gift  of  the  money  into  which  the  land  is  to  be  con- 
verted, and  it  seems  also  that  the  equitable  conversion  which  it 
causes  will  always  be  coextensive  with  the  actual  conversion 
which  is  contracted  to  be  made.  It  is  clear,  however,  that  such 
an  agreement  does  not  cause  any  equitable  conversion  whatever. 
To  suppose  that  it  does  is  to  confound  an  agreement  by  each  of 
several  co-owners  of  land  with  all  the  others  to  join  the  latter  in 
selling  the  land  to  some  person  not  yet  ascertained,  —  to  confound 
such  an  agreement  with  an  agreement  by  all  such  co-owners  to 
sell  the  land  to  some  ascertained  person ;  and  even  the  latter 
agreement  will  not  cause  an  equitable  conversion  of  the  land  into 
money  without  an  agreement  by  the  other  party  to  the  contract  to 
purchase  the  land.  Without  the  latter,  the  agreement  will  merely 
give  an  option  to  purchase  the  land,  and  its  utmost  effect,  in  the 
way  of  causing  an  equitable  conversion,  will  be  to  convert  the 
money  of  the  person  receiving  the  option  into  land  in  equity. 
The  only  way  in  which  one  can  convert  his  own  land  into  ?noney 
in  equity  in  his  own  favor  is  by  procuring  some  one  else  to  contract 
with  him  to  purchase  the  land.  Even  in  the  case  of  a  bilateral 
contract  for  the  purchase  and  sale  of  land,  it  is,  as  we  have  seen, 
the  purchaser's  side  of  the  contract  that  converts  the  seller's  land 
into  money  in  equity,  while  it  is  the  seller's  side  of  the  contract 
that  converts  the  purchaser's  money  into  land  in  equity.  It  is 
a  mistake,  moreover,  to  suppose  that  the  agreement  in  ques- 
tion is  a  contract  to  sell  the  land.  If  it  were,  the  next  step 
would  be  to  convey  the  land,  whereas,  in  fact,  the  next  step  is  a 
bilateral  contract  between  all  the  co-owners  of  the  land  and  an 
ascertained  purchaser  for  the  purchase  and  sale  of  the  land ;  and, 
of  course,  it  is  this  contract  that  causes  an  equitable  conversion  of 
the  land  into  money.  It  may  be  added  that  it  is  by  no  means  an 
easy  task  so  to  frame  an  agreement,  like  that  in  question,  that  it 
can  be  enforced  in  a  court  of  law,  and  it  is  believed  that  no  in- 


1  Hardey  v.  Hawkshaw,  12  Beav.  552;  In  re  Stokes,  62  L.  T.  176;  Darby  v.  Darby, 
3  Dr.  495. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         3^5 

telligent  person  will  seriously  contend  that  such  an  agreement  can 
be  specifically  enforced  in  equity. 

In  a  former  article,^  I  have  considered  several  important  dis- 
tinctions, having  no  direct  connection  with  equitable  conversion, 
between  a  direction  to  sell  land  accompanied  by  a  gift  of  the 
proceeds  of  the  sale,  or  of  some  part  thereof,  or  of  some  interest 
therein,  and  the  creation  of  a  lien  or  charge  on  the  same  land, 
either  with  or  without  a  direction  to  sell  the  land  to  satisfy  the 
lien  or  charge.  There  is,  however,  another  important  and  radical 
distinction  between  these  two  things  which  has  exclusive  relation 
to  the  creation  of  an  equitable  conversion,  —  so  radical  indeed 
that,  while  the  former  always  causes  an  equitable  conversion,  the 
latter  never  does.  This  being  so,  it  is  indispensable  that  the  two 
things  be  accurately  distinguished  from  each  other.  Fortunately, 
too,  it  is  possible  to  distinguish  them  with  entire  accuracy,  though 
they  seldom,  if  ever,  have  been  so  distinguished.  How,  then,  is 
the  distinction  to  be  made?  i.  A  gift  out  of  the  proceeds  of  a 
sale  of  land,  though  it  may  be  of  either  a  limited  or  an  absolute 
interest,  must  always  extend  either  to  the  entire  proceeds  of  the 
sale,  or  to  some  fractional  part  thereof,  and  hence  such  a  gift 
always  makes  a  sale  of  all  the  land  necessary,  as  it  is  only  by  a 
sale  of  all  the  land  that  the  amount  of  money  to  which  the  gift 
will  extend  can  be  ascertained.  2.  Where  land  is  charged  with 
the  payment  of  money  the  amount  of  money  which  constitutes 
the  charge  bears  no  relation  to  the  value  of  the  land  or  to  the 
price  for  which  it  will  sell,  and  hence  a  sale  of  the  land  can  never 
be  necessary  to  ascertain  the  amount  of  the  charge,  nor  will  a  sale 
of  the  land  even  aid  in  ascertaining  its  amount.  How,  then,  shall 
the  amount  of  the  charge  be  ascertained?  He  who  makes  the 
charge  must  at  his  peril  fix  its  amount  or  furnish  the  means  of 
fixing  it.  For  example,  if  the  charge  consists  of  a  sum  of  money 
given,  by  the  deed  or  will  which  creates  the  charge,  to  a  person 
named,  the  usual  and  proper  mode  of  fixing  the  amount  of  the 
charge  is  by  naming  the  amount  of  the  gift  in  lawful  money.  If 
the  charge  be  made  by  will,  and  consist  of  all  the  testator's  pecu- 
niary legacies,  the  amount  of  the  charge  will  be  ascertained  by 
adding  together  all  the  pecuniary  legacies  contained  in  the  will 
and  in  the  codicils  thereto,  if  any.  If  the  charge  be  created  by 
a  will,   or  by  a  deed  of   assignment,  and  consist  of  all  the  tes- 

1  Supra,  p.  2S2  et  scq. 


366        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

tator's  or  assignor's  debts,  the  amount  of  the  charge  will  be  ascer- 
tained by  adding  together  such  debts  as  the  testator  or  assignor 
shall  be  proved  to  have  owed  when  he  died,  or  when  he  made  the 
deed  of  assignment.  Or,  instead  of  charging  "  all  his  debts  "  he 
may  of  course  charge  only  such  debts  as  he  shall  specify  in  the 
will  or  deed,  and,  in  that  case,  the  will  or  deed  will  be  conclusive 
both  as  to  the  number  of  debts  and  as  to  the  amount  of  each. 

Why  does  a  lien  or  charge  on  land  never  cause  an  equitable 
conversion  of  the  land  into  money?  i.  Because  it  never  consti- 
tutes any  step  towards  the  alienation  of  the  land.  When  a  sale 
of  land  is  directed,  and  a  gift  is  at  the  same  time  made  out 
of  the  proceeds  of  the  sale,  to  A,  for  example,  and  the  land  is 
afterwards  sold  pursuant  to  the  direction,  an  immediate  conse- 
quence of  the  sale  is  that  the  proceeds,  to  the  extent  of  the  gift, 
become  the  property  of  A,  at  least  in  equity,  and  that  is  of  course, 
by  virtue  of  the  previous  gift  to  him,  which,  however,  remains  ex- 
ecutory till  the  sale  is  made.  On  the  other  hand,  when  land  is 
merely  charged  with  the  payment  of  money  to  A,  for  example, 
and  the  land  is  afterwards  sold,  whether  for  the  purpose  of  satisfy- 
ing the  charge  or  not,  the  ownership  of  the  proceeds  of  the  sale 
will  be  just  where  it  would  have  been  if  the  charge  had  not  been 
made,  and  no  part  of  such  proceeds  will  be  the  property  of  A, — 
whose  right  against  such  proceeds  will  be  precisely  the  same  as 
his  right  against  the  land  before  it  was  sold,  i.  e.,  he  will  have  a 
lien  or  charge  on  such  proceeds  for  the  sum  of  money  coming 
to  him.  2.  If  a  charge  of  land  with  a  payment  of  a  debt  causes 
an  equitable  conversion  of  the  land  to  the  extent  of  the  debt,  it 
must  be  because  of  the  direction  to  sell  the  land^  which  is  sup- 
posed to  accompany  the  charge;  and  yet  such  a  direction  is 
wholly  unnecessary,  the  charge  being  complete  without  it.  A 
direction,  indeed,  to  sell  land,  and  apply  the  proceeds  of  the  sale 
to  the  payment  of  a  certain  debt,  will  of  itself  constitute  a  charge 
of  the  debt  upon  the  land,  but  it  is  only  as  evidence  of  an  intention 
to  make  a  charge  that  such  a  direction  is  material.  Besides,  when 
an  owner  of  land  charges  the  same  with  the  payment  of  a  debt, 
his  power  over  the  land  is,  to  the  extent  of  the  charge,  entirely 
suspended,  and  will  remain  suspended  till  the  charge  is  removed, 
and,  therefore,  the  addition  of  a  direction  to  sell  the  land  is,  for 

1  For  it  is  only  by  an  agreement  or  direction  to  sell,  that  land  can  be  converted 
indirectly  into  money.  Hyett  v.  Mekin,  25  Ch.  D.  735.  And  see  supra,  p.  354, 
proposition  9. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         367 

that  reason,  without  meaning.  The  owner  of  the  charge  can  re- 
quire the  land  to  be  sold  whenever  there  is  a  default  in  the  pay- 
ment of  the  debt,  but  that  is  because  of  the  charge,  —  not  because 
of  a  direction  to  sell  the  land.  It  cannot,  therefore,  be  said,  with  any 
propriety,  that,  in  any  case  where  an  owner  of  land  charges  it  with 
the  payment  of  a  debt,  and  the  land  is  afterwards  sold  for  the 
satisfaction  of  the  charge,  the  sale  takes  place  by  virtue  of  a  pre- 
vious direction  by  the  owner  of  the  land;  and  hence  the  making  of 
the  charge  cannot  cause  an  equitable  conversion  of  the  land  into 
money.  3.  When  land  is  charged  with  the  payment  of  a  debt 
the  debt  has  an  independent  existence,  and  that,  too,  at  law  as 
well  as  in  equity.  So  far  from  its  being  at  all  dependent  upon 
the  charge,  the  charge  is  so  dependent  upon  the  debt  that  it 
cannot  exist  without  it.  Nor  does  a  sale  of  the  land  have  any 
other  effect  upon  the  debt  than  to  produce  a  fund  which  is  ap- 
plicable to  its  payment  and  discharge.  In  short,  the  land  has 
nothing  to  do  with  bringing  the  debt  into  existence,  nor  with  the 
debt  during  the  period  of  its  existence,  —  only  with  its  payment 
and  extinguishment.  It  is  true  that  the  debt  is  personal  property, 
but  that  is  not  because  it  is  land  converted  in  equity  into  money, 
for  it  is,  from  its  nature,  personal  property  at  law  and  in  fact,  as  well 
as  in  equity.  Nor  can  it  owe  its  existence  to  the  actual  sale  of  the 
land,  for  then  it  would  not  come  into  existence  till  after  the  sale, 
whereas  it  is  assumed  that  the  purpose  of  the  sale  is  the  payment 
of  the  debt,  and  hence  that  the  debt  exists  before  the  sale  is  made. 
As,  therefore,  a  debt  charged  on  land  is  personal  property  without 
reference  to  the  question  whether  the  land  is,  to  the  extent  of  the 
debt  or  debts  charged  upon  it,  converted  in  equity  into  money  or 
not,  it  follows  that  the  latter  question  is  not  a  practical  one,  as  no 
person  can  have  any  interest  in  maintaining  either  the  affirmative 
or  negative  of  it. 

The  only  practical  question,  therefore,  is  whether  land  which  is 
charged  with  debts  is  thereby  wholly  converted  in  equity  into 
money,  for,  if  it  is,  of  course  any  surplus  over  and  above  the 
charge  will  be  converted  into  money  in  equity.  As  to  this 
latter  question,  however,  it  may  be  observed,  first,  that,  before 
the  affirmative  of  it  can  be  established,  it  must  be  proved  that  a 
charge  of  land  with  debts  converts  the  land  into  money  in  equity 
to  the  extent  of  the  debts  charged  upon  it,  and  therefore  the  argu- 
ments which  I  have  urged  in  disproof  of  the  latter  proposition  are 
equally  strong  in  disproof  of  the  proposition  that  a  charge  of  land 


368        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

with  debts  converts  the  surplus  of  the  land  into  money  in  equity; 
secondly,  that,  in  order  to  establish  the  affirmative  of  this  latter 
proposition,  it  must  be  proved  that  a  person  can,  by  a  covenant 
or  a  direction  to  sell  land,  convert  such  land  into  money  in  equity 
as  to  himself,  and  as  to  those  claiming  under  him,  subsequent  to 
such  covenant  or  direction,  —  a  proposition  which  can  easily  be 
proved  by  authority,  but  the  negative  of  which  is  very  clear  upon 
principle ;  thirdly,  that,  a  charge  of  land  with  debts,  or  a  direction 
to  sell  land  for  the  payment  of  debts,  authorizes  a  sale  of  so  much 
of  the  land  only  as  is  necessary  for  the  payment  of  the  debts 
charged,  and,  therefore,  can  not  cause  an  equitable  conversion  of 
the  surplus  of  the  land  over  and  above  such  debts.  If,  therefore, 
the  charge  be  made  by  deed,  any  surplus  of  the  land  over  and 
above  the  charge  will  still  belong,  at  least  in  equity,  to  the  person 
who  made  the  charge,  and  such  surplus  will  be  land  in  his  hands. 
If  the  charge  be  made  by  will,  any  surplus  over  and  above  the 
charge  will,  at  least  in  equity,  pass  to  the  testator's  heir  or  devisee, 
and  will  be  land  in  his  hands.  Accordingly,  in  the  case  of  Roper 
V.  Radcliffe,^  it  was  resolved  by  the  House  of  Lords,  reversing  the 
decree  of  the  Court  of  Chancery, 

"  that  though  lands  devised  for  payment  of  debts  and  legacies  are  to  be 
deemed  as  money  so  far  as  there  are  debts  and  specific  legacies  to  be  paid, 
yet  still  the  heir  at  law  has  an  interest  in  such  lands  by  a  resulting  trust,  so 
far  as  they  are  of  value  after  the  debts  and  legacies  are  paid ;  and  the  heir 
at  law  may  properly  come  into  a  court  of  equity  and  restrain  the  vendor 
from  selling  more  of  the  lands  than  what  are  necessary  to  raise  money  suf- 
ficient to  discharge  the  debts  and  legacies,  and  to  enforce  the  devisee  to 
convey  the  residue  to  him  ;  which  residue  shall  not  be  deemed  as  money, 
neither  shall  it  go  to  the  executors  of  the  testator.  Nay,  the  heir  at  law  in 
such  case  may  properly  come  into  a  court  of  equity,  and  offer  to  pay  all 
the  debts  and  legacies,  and  pray  a  conveyance  of  the  whole  estate  to  him ; 
for  the  devisee  is  only  a  trustee  for  the  testator  to  pay  his  debts  and  legacies. 
This  is  a  privilege  which  has  been  always  allowed  in  equity  to  a  residuary 
devisee  ;  for  if  he  come  into  court,  and  tender  what  will  be  sufficient  to 
discharge  all  the  debts  and  legacies,  or  pray  that  so  much  of  the  lands  and 
no  more,  may  be  sold,  than  what  will  raise  money  to  discharge  them,  this  is 
always  decreed  in  his  favor.  Therefore,  though  lands  given  in  trust,  or 
devised  for  payment  of  debts  and  legacies,  shall  be  deemed  in  equity  as 
money  in  respect  to  the  creditors  and  legatees,  yet  it  is  not  so  in  respect 
to  the  heir  at  law  or  residuary  devisee;  for  in  those  cases  they  shall  be 
deemed  in  equity  as  lands." 

1  9  Mod.  167,  170. 


A    BRIEF  SURVEY  OF  E  QUI  TV  JURISDICTION.         369 

So  in  Nicholls  v.  Crisp, ^  where  a  testator  directed  all  his  land  to 
be  sold,  and  charged  the  proceeds  with  certain  legacies,  and,  if 
the  proceeds  should  exceed  jC,T),ooo  he  bequeathed  the  surplus 
to  his  natural  daughter,  who  died  before  him.  Lord  Bathurst  de- 
clared that,  the  object  being  to  convert  the  land  merely  for  the 
purpose  of  paying  the  legacies,  if  the  heir  would  pay  the  legacies, 
the  lands  should  not  be  sold.  Also  in  Digby  v.  Legard,^  where 
a  testator  devised  his  real  and  personal  estate  to  trustees  in  trust 
to  sell  to  pay  debts  and  legacies,  and  to  pay  the  surplus  to  five 
persons  equally,  ont  of  whom  died  before  the  testator,  and  the 
question  was  whether  her  one-fifth  was  real  or  personal  estate,  the 
counsel  for  the  heir  insisted  that  the  testator  charged  and  sub- 
jected her  land  to  the  payment  of  her  debts  and  legacies,  only  in 
case  the  personal  estate  were  not  sufficient,  in  which  event  alone 
was  the  land  to  be  sold,  and  only  so  much  as  should  be  necessary; 
and  that  the  five  residuary  legatees  might  have  paid  the  debts  and 
legacies,  and  then  have  called  for  a  conveyance  of  the  land ;  and 
Lord  Bathurst  so  held. 

While,  however,  the  foregoing  cases  have  never  been  overruled 
or  even  questioned,  it  must  be  confessed  that  the  courts  have,  for 
the  most  part,  failed  to  distinguish  charges  on  land  from  gifts  of 
the  proceeds  of  the  sale  of  land,  and  hence  they  have  assumed 
that  the  former  have  the  same  effect  as  the  latter  in  converting  the 
land  into  money  in  equity.  Cases  arising  upon  wills,  in  which  they 
have  so  assumed,  have  already  been  sufficiently  stated.^  Cases  in 
which  a  lien  or  charge  on  land  is  created  by  deed  are  generally 
cases  in  which  debtors,  in  embarrassed  circumstances,  make  an 
assignment  of  their  property,  both  real  and  personal,  for  the  bene- 
fit of  their  creditors.  Such  assignments,  if  they  create  any  new 
right  in  favor  of  the  creditors,  create  in  their  favor  a  Hen  or  charge 
on  the  property  assigned.  They  do  not,  however,  necessarily 
create  any  new  right  *  in  favor  of  the  creditors,  and  when  they  do 
not,  the  assignees,  though  they  become  the  legal  owners  of  the 
property,  hold  it  simply  as  the  agents  of  their  assignors,  whose 
servants  they  are,  and  who  may,  therefore,  revoke  their  authority 

^  Stated  by  Sir  R.  P.  Arden,  M.  R.,  in  Croft  v.  Slee,  4  Ves.  60,  65. 

2  Dick.  500. 

s  See  supra,  pp.  355-357;  also  346,  n.  (2).  The  cases  are  Hill  z/.  Cock,  r  Ves. 
&  B.  173;  Maugham  v.  Mason,  i  Ves.  &  B.  410;  Jessopp  v.  Watson,  1  Myl.  &  K.  665  ; 
Flint  z'.  Warren,  14  Sim.  554,  16  Sim.  124;  Shallcross  v.  Wright,  12  Beav.  505,  and 
Hamilton  v.  Foote,  Ir.  R.  6  Eq.  572. 

*  See  Biggs  v.  Andrews,  :tt/ra,  and  Griffith  v.  Ricketts,  infra. 

24 


3/0        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

and  require  a  reassignment  of  the  property  at  any  moment.  So 
far,  however,  as  regards  the  question  of  equitable  conversion,  the 
courts  have  generally  failed  to  recognize  even  this  latter  distinction. 
On  the  contrary,  as  an  assignment  for  the  benefit  of  creditors  gen- 
erally contains,  in  terms,  a  direction  to  the  assignees  to  sell  the 
property  assigned,  the  courts  have  generally  assumed  that  this 
direction  alone  was  sufficient  to  convert  any  land  included  in  the 
assignment  into  money  in  equit3^  Thus,  in  Biggs  v.  Andrews,^ 
where  one  Biggs  conveyed  and  assigned  all  his  property  to  two 
trustees  in  trust  to  sell  the  same,  and  pay  his  debts  out  of  the  pro- 
ceeds, and  hold  the  surplus  in  trust  for  himself,  and  he  died  before 
his  land  was  all  sold,  it  was  held  that  all  his  property  devolved,  at 
his  death,  on  his  personal  representatives;  but,  though  there  is 
reason  to  believe  that  the  decision  was  in  accordance  with  the 
wishes  of  the  deceased,  yet  it  seems  to  be  very  clear  that  it  was 
wrong  in  principle ;  for  it  appears  that  Biggs  made  the  conveyance 
and  assignment,  not  because  he  was  insolvent,  or  supposed  him- 
self to  be  so,  but  because  he  was  out  of  health,  and  wished  to  retire 
at  once  from  business;  and  accordingly  he  had  selected  the  two 
trustees  to  wind  up  his  business  for  him.  It  is  clear,  therefore, 
that,  in  making  the  conveyance  and  assignment  he  made  himself 
the  sole  cestui  que  trust,  no  new  right  whatever  being  conferred 
upon  his  creditors;  that  the  trustees  were  simply  his  agents,  though 
clothed  with  the  naked  legal  ownership  of  all  the  property,  and, 
therefore,  he  could  have  revoked  their  authority  at  any  moment, 
and  required  them  to  reconvey  and  reassign  the  property  to  him. 
They  could  also  have  given  up  the  agency  at  their  pleasure,  and, 
therefore,  could  not  have  been  compelled  to  sell  any  of  the  land. 

So  also  in  Griffith  v.  Ricketts,^  where  an  equity  of  redemption 
was  conveyed  to  trustees  in  trust  to  sell  the  same  for  the  payment 
of  the  grantor's  debts,  any  surplus  to  be  paid  to  the  grantor,  "  his 
executors,  administrators,  and  assigns,"  it  was  held  that,  upon  the 
grantor's  death,  the  equity  of  redemption  devolved  in  equity  upon 
his  personal  representative,  subject,  of  course,  to  any  charge  which 
the  conveyance  had  created.  The  judgment,  however,  seems  to 
rest  chiefly,  if  not  wholly,  upon  the  words  which  I  have  placed 
within  quotation  marks.  To  me,  however,  it  seems  clear  that 
those  words  have  no  bearing  upon  the  question.  The  only  thing 
that  could  cause  an  equitable  conversion  of  the  land  into  money 

1  5  Sina.  424.  -  7  Hare  299. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         3/1 

was  the  direction  to  the  trustees  to  sell  the  land;  and  the  words 
quoted  could  not  even  aid  in  creating  an  equitable  conversion, 
unless  they  constituted  a  gift  of  any  surplus  which  should  be  pro- 
duced by  the  sale;  and  it  cannot  be  seriously  claimed  that  they 
did  constitute  such  a  gift.  VVigram,  V.  C,  says  ^ :  "  The  first  ques- 
tion is  how  the  case  would  be  if  the  trustees  had  sold  the  land 
in  the  lifetime  of  the  grantor,  and  had  the  money  in  their  hands. 
In  that  case  it  would,  I  apprehend,  clearly  belong  to  the  personal 
representative  of  the  grantor."  Undoubtedly  it  would,  but  the 
plain  reason  seems  to  me  to  be  that  it  would  be  a  part  of  the 
grantor's  personal  estate  at  the  time  of  his  death,  and  hence  would 
devolve  like  his  other  personal  estate.^ 

Finally,  in  Clarke  v.  Franklin,^  where  land  was  granted  and  con- 
veyed to  trustees,  subject  to  a  life  estate  in  the  grantor,  in  trust  to 
convert  the  same  into  money  at  the  grantor's  death,  and  pay  out 
of  the  net  proceeds  six  sums  of  ;!^50  each  and  one  sum  of  iJ^20,  to 
persons  named,  or  such  of  them  as  might  be  living  at  the  grantor's 
death,  and  no  valid  disposition  was  made  of  the  residue  of  the  net 
proceeds,  it  was  held  that  the  land  was  converted  into  money  in 
equity  from  the  moment  of  the  delivery  of  the  deed  of  conveyance, 
and  hence  that  it  devolved  in  equity,  at  the  grantor's  death,  as  if 
it  were  money.  It  will  be  seen,  however,  that  the  deed  in  this  case 
is  of  a  very  different  nature  from  that  in  either  of  the  two  preced- 
ing cases ;  for,  instead  of  being  an  assignment  for  the  benefit  of 
creditors,  it  seems  to  have  been  a  substitute  for  a  will.  Accord- 
ingly, the  grant  which  it  made  was  not  to  take  efi'ect  in  possession 
until  the  grantor's  death.  So  also  the  several  sums  of  money 
which  were  charged  on  the  land  appear  to  have  been  gifts,  and 
would,  therefore,  have  taken  the  form  of  pecuniary  legacies,  if 
the  document  had  been  a  will.  On  the  other  hand,  the  deed 
took  effect  immediately  on  its  delivery,  and,  unlike  a  will,  was 
irrevocable. 

There  is  also  another,  but  wholly  different  class  of  cases,  in  which 
money  is  directed  to  be  laid  out  in  the  purchase  of  land,  and  yet 
the  ownership  of  the  land,  when  purchased,  will  be  just  where  the 
ownership  of  the  money  was  when  the  purchase  was  made,  namely,* 
where  land  is  settled,  the  legal  ownership  being  vested  in  trustees,* 

1  Page  313.  2  See  supra,  pp.  263-268. 

8  4  K.  &  J.  257. 

*  If  the  legal  ownership  is  not  vested  in  trustees,  but  the  limitations  of  the  settle- 
ment are  legal,  the  same  object  is  accomplished  by  means  of  a  power. 


372        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

and  the  latter  are  authorized  to  sell  the  land,  but  are  directed  to 
invest  the  proceeds  of  the  sale  in  other  land,  and  the  land  is 
accordingly  sold,  but,  before  other  land  is  purchased,  the  question 
arises  whether  the  money  is,  from  the  moment  of  the  sale,  con- 
verted in  equity  into  land ;  and  this  question  has  always  been 
answered  in  the  affirmative,^  and  seems  never  to  have  been  sup- 
posed to  be  open  to  doubt ;  and  yet  it  seems  to  be  clear,  upon 
principle,  that  it  ought  to  have  been  answered  in  the  negative. 
Neither  the  direction  to  reinvest  the  money  in  land,  nor  the  actual 
reinvestment  of  it  in  land,  causes  any  change  in  ownership  of  the 
settled  estate,  for,  though  no  such  direction,  or  even  authority,  had 
been  given,  yet,  when  the  land  was  sold,  the  proceeds  of  the  sale 
would  have  followed  the  limitations  of  the  settlement,  they  taking 
the  place  of  the  land.  The  only  reason,  therefore,  for  directing 
the  reinvestment  of  the  money  in  land  is  that  the  settlor  prefers 
land  as  an  investment,  —  not  that  he  wishes  the  estate  to  continue 
to  devolve  in  equity  as  if  it  were  land,  notwithstanding  the  land  is 
sold,  as  it  will  so  devolve  in  any  event.  It  has  been  seen,  more- 
over, that,  when  money  is  converted  in  equity  into  land  by  a  direc- 
tion that  it  be  exchanged  for  land,  what  actually  takes  place  is 
this :  the  person  who  gives  the  direction,  at  the  same  time  creates 
a  right  in  another  person  to  have  the  exchange  made,  and  then  to 
have  the  land,  or  some  portion  thereof,  or  some  estate  therein 
conveyed  to  him;  and  the  money  is  said  to  be  converted  immedi- 
ately into  land  in  equity,  because,  if  the  person  in  whom  such  right 
is  created  shall  die,  intestate,  before  the  actual  exchange  is  made, 
his  right  will  devolve  in  equity  upon  his  heir  as  if  it  were  land.  In 
the  case  now  under  discussion,  however,  there  is  nothing  of  this 
kind.  On  the  contrary,  each  person  who  will,  under  the  settle- 
ment, have  an  interest  in  the  land  when  purchased,  has,  in  the 
meantime,  the  same  interest  in  the  money,  and  the  land  will,  when 
purchased,  simply  take  the  place  of  the  money,  just  as,  when  the 
original  land  was  sold,  the  money  took  the  place  of  the  land.  If, 
therefore,  this  money  will  devolve  as  if  it  were  land  in  equity,  by 
reason  of  its  having  been  converted  in  equity  into  land,  it  must  be 
because  in  equity  it  is  land,  i.  e.,  because  it  has,  by  a  fiction,  been 
transmuted  by  equity.  In  other  words,  if  the  money  has  been  con- 
verted in  equity  into  land,  the  conversion  must  have  been  direct, 

1  Chandler  v.  Pocock,  15  Ch.  D.  491,  497,  16  Ch.  D.  648;  Walrond  v.  Rosslyn,  11 
Ch.  D.  640;  In  re  Duke  of  Cleveland's  Settled  Estates,  [1S93]  3  Ch.  244;  In  re 
Greaves's  Settlement  Trusts,  23  Ch.  D.  313. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         373 

and  )'et  there  is  no  ground  upon  which  equity  can  make  a  direct 
conversion.^ 

As,  however,  money  into  which  settled  land  has  been  converted 
will  follow  the  limitations  of  the  settlement,  whether  such  money 
be  treated  as  money  or  as  land,  the  reader  may  think  the  question 
which  I  have  been  considering  is  not  of  much  practical  importance. 
It  is  always  important,  however,  that  a  legal  question  should  not 
only  be  correctly  decided,  but  that  the  reasons  given  for  the 
decision  should  also  be  correct,  it  being  impossible  to  foresee 
what  mischiefs  may  result  from  erroneous  reasons  given  for  correct 
decisions.  Moreover,  if  the  money  into  which  settled  land  has 
been  converted  be  erroneously  held  to  have  been  reconverted  in 
equity  into  land,  the  result  is  not  likely  to  be  the  same  as  if  what 
is  money  in  fact  had  been  treated  as  money  in  equity  also,  unless 
the  equitable  conversion  of  the  money  into  land  is  confined  to  the 
limitations  of  the  settlement;  and  yet  we  have  had  too  much  oc- 
casion to  see  that,  when  money  is  covenanted  or  directed  to  be 
laid  out  in  the  purchase  of  land,  and  the  land  to  be  settled,  the 
courts  always  hold  that  the  money  is  converted  into  land  in  equity, 
not  merely  to  the  extent  of  the  limitations  in  the  settlement,  but 
also  as  to  the  reversionary  interest  retained  by  the  settlor,  i.  e.,  not 
only  as  to  the  persons  in  whose  favor  the  settlement  is  to  be  made. 


1  For  the  reason  stated  in  the  text,  as  well  as  for  another  reason,  the  case  of  Ashby 
V.  Palmer,  I  Mer.  296,  i  Jarm.  on  Wills,  ist  ed.,  527,  seems  to  have  been  erroneously 
decided,  though  that  was  a  case  of  converting  land  into  money,  —  not  money  into  land. 
In  that  case,  a  testator,  who  was  a  widow,  and  had  an  infant  daughter  and  only  child, 
devised  all  her  land  to  trustees  in  trust  to  sell  the  same  for  the  payment  of  debts,  and 
for  educating  and  bringing  up  the  daughter,  and,  when  the  latter  attained  twenty-one 
or  married,  the  trustees  were  directed  to  pay  to  her  any  proceeds  of  the  sale  still  re- 
maining in  their  hands.  The  daughter  became  a  lunatic  before  she  attained  full  age, 
and  so  remained  till  her  death,  —  more  than  fifty  years  after  the  will  was  made.  None 
of  the  land  having  been  sold,  .Sir  W.  Grant,  M.  R.,  held  that  the  daughter's  next  of  kin 
were  entitled  to  it.  It  seems  to  be  clear,  however,  first,  that  the  land  descended  in 
equity  to  the  daughter,  and,  therefore,  that,  if  it  had  been  sold,  the  proceeds  of  the  sale 
would  have  belonged  to  her  in  equity,  subject  to  any  use  which  the  trustees  were 
authorized  to  make  of  them.  Consequently,  a  sale  of  the  land  would  have  been 
attended  with  no  alienation  of  the  proceeds  of  the  sale,  and  so  the  direction  to  sell 
caused  no  equitable  conversion.  Secondly,  it  seems  equally  clear  that  the  trust  was 
to  cease  on  the  daughter's  attaining  twenty-one  or  marrying,  unless  debts  should  still 
remain  unpaid.  Certainly,  the  trustees  were  not  authorized  to  sell  the  land  after  the 
daughter  attained  her  full  age  or  married,  e.xcept  for  the  payment  of  debts.  Assuming, 
then,  that  the  direction  to  sell  for  payment  of  debts  caused  no  equitable  conversion, 
there  ceased  to  be  any  equitable  conversion  when  the  daughter  attained  twentv-one.  as 
a  direction  to  sell  cannot  possibly  cause  an  equitable  conversion  after  it  has  ceased  to 
confer  any  authority. 


374        ^    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

but  also  as  to  the  settlor  and  those  claiming  under  him,  and  to 
this  rule  the  case  now  under  consideration  is  no  exception.  Thus, 
in  Walrond  v.  Rosslyn/  where,  by  marriage  settlement,  the  in- 
tended husband  settled  land  in  the  usual  manner,  and  the  settle- 
ment contained  the  usual  power  of  sale  and  exchange,  and,  in  case 
of  a  sale,  the  proceeds  were  to  be  invested  in  other  land,  which 
was  to  be  settled  to  the  same  uses  to  which  the  land  sold  was 
settled,  and  some  of  the  land  had  been  sold,  but  the  proceeds  had 
not  been  invested  in  other  land,  and  all  the  limitations  of  the 
settlement  had  come  to  an  end,  except  that  in  favor  of  the  in- 
tended wife  by  way  of  jointure,  so  that  the  proceeds  of  the  sale 
had  confessedly  become  the  absolute  property  of  the  settlor, 
subject  only  to  said  jointure,  and  the  settlor  had  died  intestate, 
it  was  held  by  Sir  G.  Jessell,  M.  R.,  that  said  proceeds  must  be 
treated  as  land  in  equity,  and  consequently  that  they  devolved 
upon  the  settlor's  heir;  and  yet  such  proceeds  ought,  upon  prin- 
ciple, to  have  been  held  to  devolve  upon  the  settlor's  next  of  kin, 
and  that  for  three  reasons:  first,  the  jointress  had  the  same  right 
in  said  proceeds  that  she  would  have  had  in  land  purchased  with 
them,  and  hence  there  was  no  equitable  conversion  of  said  proceeds 
into  land  ;  secondly,  the  jointress  had  only  a  charge  on  the  land 
originally  settled,  her  jointure  being  by  way  of  a  legal  rent-charge, 
and,  for  that  reason  also,  there  was  no  equitable  conversion  of  said 
proceeds  in  her  favor;  thirdly,  in  no  possible  view  could  said 
proceeds  be  converted  in  equity,  except  in  favor  of  the  jointress, 
nor  even  in  her  favor  for  any  longer  period  than  her  life. 

So  in  Chandler  v.  Pocock,^  where,  by  a  marriage  settlement,  the 
father  of  the  intended  wife  settled  land  to  the  use  of  himself,  the 
intended  husband,  and  the  intended  wife,  successively  for  their 
respective  lives,  remainder,  in  the  events  which  happened,  to 
such  uses  as  the  intended  wife  should  by  will  appoint,  remainder 
in  default  of  appointment  by  her,  to  the  settlor  in  fee,  and  the 
settlement  contained  a  power  of  sale,  the  proceeds  of  the  sale  to 
be  invested  in  other  land,  and  the  land  was  sold  accordingly  for 
consols,  but  the  consols  had  not  been  invested  in  other  land,  and 
the  wife  by  her  will  bequeathed  all  the  residue  of  her  personal 
estate  and  effects  whatsoever,  and  the  question  was  whether  this 
bequest  operated  as  an  appointment  of  the  consols  under  s.  27  of 


1  It  Ch.  D.  640. 

2  15  Ch.  D.  491,  497,  16  Ch.  D.  648. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         375 

the  Wills  Act,i  it  was  held,  first,  by  Sir  G.  Jesscll,  M.  R.,  and 
afterward  by  the  Court  of  Appeal,  that  it  did.  Was  the  decision 
correct?  There  seems  to  be  no  room  to  doubt  that  it  carried  out 
the  intention  of  the  testator,  and,  if  the  consols  were  personal 
property  in  equity,  as  they  were  in  fact,  the  question  would  not 
even  have  arisen.  Yet  both  courts  proceeded  on  the  assumption 
that  the  consols  had  been  wholly  converted  in  equity  into  land, 
and,  on  that  assumption,  the  decision  involved  the  somewhat 
startling  doctrine  that  the  term  "  personal  property,"  in  s.  27  of 
the  Wills  Act,  meant  "  actual  personal  estate,  though  constructively 
converted  into  land,"  i.  c,  that  the  Legislature,  in  enacting  that 
section,  wholly  ignored  the  doctrine  of  equitable  conversion. 

In  In  re  Greaves's  Settlement  Trusts,^  by  marriage  settlement, 
the  intended  husband  settled  land  on  the  intended  wife  for  her 
life,  retaining  the  reversion  in  fee  in  himself.  The  settlement  con- 
tained a  power  to  sell  the  land,  the  proceeds  to  be  invested  in 
other  land  ;  and  the  land  was  accordingly  sold,  but  the  proceeds 
were  invested  in  new  three  per  cents,  and  so  remained  ;  the  wife 
survived  the  husband,  who  bequeathed  all  his  money  in  the  public 
funds  or  elsewhere  to  his  children  equally,  and  Frye,  Justice,  held 
that  the  new  three  per  cents  did  not  pass,  the  same  being  con- 
verted in  equity  into  land,  and  the  bequest  not  operating  as  an 
appointment  under  s.  27  of  the  Wills  Act.  The  consequence, 
therefore,  of  holding  that  the  new  three  per  cents  were  converted 
in  equity  into  land,  was  that  the  testator's  intention  as  to  their 
disposition  was  wholly  frustrated  ;  though  this  was  only  because 
the  conversion  was  held  to  extend  to  the  husband's  reversionary 
interest.  If  it  had  been  held  either  that  there  had  been  no 
equitable  conversion,  or  that  the  equitable  conversion  extended 
only  to  the  wife's  life  interest,  the  testator's  intention  would  have 
been  fully  carried  out. 

Lastly,  in  In  7'e  the  Duke  of  Cleveland's  Settled  Estates,^  where 
settled  land  was  vested  in  the  Duke  of  Cleveland  as  tenant  for  life 
in  possession,  remainder  to  his  first  and  other  sons  successively  in 
tail  male,  remainder  to  said  Duke  in  fee,  and  the  same  was  sold 
under  a  power  conferred  by  a  private  Act,  which  directed  the 
proceeds  of  the  sale  to  be  invested  in  other  land,  but  they  were 
invested  in  consols  instead,  and  the  Duke  afterwards  died  without 
issue,  having    devised   his  residuary   real   and   personal   estate   to 

1  7  Wm.  IV.  &  I  Vict.  c.  26.  2  23  Ch.  D.  313. 

^  [1S93]  3  Ch.  244. 


376        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

trustees  in  trust  for  the  Hay  family,  the  Court  of  Appeal  held  that 
said  consols  passed  under  said  residuary  clause,  but  that  they 
passed  as  land ;  and  yet  the  Duke's  remainder  in  fee,  which  was  all 
that  passed  by  his  will,  was  entirely  outside  the  settlement,  and  so 
the  decision  is  open  to  the  same  objection  as  the  decision  in  the 
preceding  case. 


ARTICLE     XVI. 


Equitable  Conversion. 

VI. 

IT  has  often  been  declared  judicially  that  the  equitable  conver- 
sion of  money  into  land  has  the  effect  of  vesting  the  equitable 
ownership  of  the  land  in  him  in  whose  favor  the  conversion  is 
made,  and  not  unfrequently  the  same  effect,  mutatis  7mitandis,  has 
been  attributed  to  the  equitable  conversion  of  land  into  money. 
Moreover,  the  courts  which  have  so  declared,  while  they  have  gen- 
erally had  before  them  no  more  than  a  single  concrete  case  of 
equitable  conversion,  have  made  the  declaration  broadly,  and  as 
applicable  to  equitable  conversions  of  every  kind,  or,  at  least,  they 
have  not  intimated  that  the  doctrine  which  thev  were  declaringr 
involved  any  division  of  equitable  conversions  into  classes,  nor 
that  there  was  any  class  of  such  conversions  to  which  the  doctrine 
was  not  applicable.  In  order,  however,  to  test  the  correctness  of 
the  doctrine,  it  is  necessary  to  consider  it  in  its  application  to  each 
of  the  two  great  classes  of  equitable  conversions,  namely,  those 
which  are  direct  and  those  which  are  indirect;  and,  for  the  pur- 
pose of  considering  it  in  its  application  to  such  equitable  conver- 
sions as  are  indirect,  it  will  be  desirable  to  separate  the  latter,  as  I 
have  done  in  a  previous  article,^  into  such  as  are  caused  by  the 
common  bilateral  contract  for  the  purchase  and  sale  of  land,  those 
which  are  caused  by  a  unilateral  covenant  to  purchase  ^r  sell  land, 
and  those  which  are  caused  by  means  of  a  trust  or  duty  to  purchase 
or  sell  land. 


1  19  Harv.  L.  Rev.  233. 

2  Supra,  pp.  309-327. 


378        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

When  a  contract  is  entered  into  for  the  purchase  and  sale  of 
land,  and  the  purchaser  dies  pending  the  contract,  it  has  always 
been  held,  as  we  have  seen,^  that  his  heir  or  devisee  is  entitled  to 
enforce  the  contract  against  the  seller  for  his  own  benefit,  and  at 
the  expense  of  the  purchaser's  executor,  and  this  has  been  sup- 
posed to  involve  the  doctrine  that  the  land  passes  in  equity  from 
the  seller  to  the  purchaser  the  moment  when  the  contract  is  made, 
and  so  passes  on  the  death  of  the  latter  to  his  heir  or  devisee, 
though  I  have  endeavored  to  show^  that  it  involves  only  the  doc- 
trine that,  on  the  death  of  the  purchaser,  his  right  under  the  con- 
tract to  have  the  land  conveyed  to  him  devolves  in  equity  on  his 
heir  or  devisee,  just  as  the  land  would  if  the  contract  had  been 
performed  before  the  purchaser's  death,  though  the  purchaser's 
concurrent  obligation  to  pay  the  purchase  money  devolves,  both 
at  law  and  in  equity,  on  his  executor.  If  I  am  right  in  this,  it  will 
follow  that  the  decisions  which  have  been  made  in  favor  of  the  pur- 
chaser's heir  or  devisee  establish  only  that  such  heir  or  devisee  is 
entitled  to  enforce  the  contract  specifically  for  his  own  benefit,  — 
not  that  he  is  the  owner  in  equity  of  the  land  purchased.  But, 
however  that  may  be,  it  is  important  to  ascertain  how  the  question 
stands  upon  principle.  Clearly,  the  burden  rests  upon  those  who 
assert  that  the  contract  itself  has  the  effect  of  passing  the  land  in 
equity,  to  show  some  principle  of  equity  which  gives  the  contract 
that  effect.  What  do  they  show?  They  say  equity  considers  as 
done  whatever  is  agreed  to  be  done.  Equity,  however,  has  no  such 
principle  as  that,  and  the  only  one  which  resembles  it  is  the  prin- 
ciple that  whatever  is  agreed  to  be  done  equity  considers  as  done 
at  the  time  when  it  is  agreed  to  be  done,^  and  when,  consequently, 

1  Supra,  pp.  309-310.  ^  Ibid. 

3  The  case  of  Gibson  v.  Lord  Montfort,  i  Ves.  485,  is  very  instructive  in  this  con- 
nection. The  question  there  was  whether  the  heir  or  the  devisee  of  a  deceased  testa- 
tor was  entitled  to  certain  land  which  the  testator  had  contracted  for  before  making 
the  first  codicil  to  his  will, —  which,  however,  was  made  before  the  contract  was  per- 
formed, and  even  before  the  date  fixed  for  its  performance  ;  and  the  question  between 
the  heir  and  the  devisee  was  supposed  to  depend  upon  whether  the  land  passed  to  the 
testator  in  equity  before  the  date  of  the  first  codicil  ;  and  Lord  Hardwicke  said 
(p.  494) :  "  The  contract  was  before  the  first  codicil,  and  went  a  great  way  to  end  the 
question.  But  the  first  codicil  came  before  the  time  for  the  execution  of  these  articles, 
which  is  the  only  difficulty;  for,  though  things  agreed  on  are  looked  upon  as  executed 
here,  yet  this  is  not  such  an  agreement  as  could  be  executed  at  that  time,  the  time  for 
execution  not  being  come ;  but  that  seems  too  nice,  for,  on  a  contract  for  lands,  if  the 
party  die  before  the  time  for  making  the  conveyance  comes  and  without  a  will,  the 
court  considers  it  for  the  benefit  of  the  heir  that  the  land  should  be  purchased  for  him, 
and,  if  so,  why  not  for  the  devisee.'"     It  seems  plain,  therefore,  that  Lord  Hardwicke 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         379 

it  ought  to  be  done,  and  it  is  needless  to  say  that  that  principle 
furnishes  no  warrant  for  saying  that  the  contract  in  question  passes 
the  land  in  equity  the  moment  when  it  is  made,  especially  as  a  con- 
siderable length  of  time  always  elapses  between  the  making  and 
the  performance  of  a  contract  for  the  purchase  and  sale  of  land, 
and  the  contract,  if  properly  drawn,  always  names  a  future  day 
when  the  purchase  shall  be  completed.  Moreover,  the  question  is 
whether  the  land  passes  to  the  purchaser  in  equity  at  the  moment 
when  the  contract  is  made,  —  not  whether  it  passes  to  him  at 
any  subsequent  time,  for  it  is  confessedly  at  the  moment  when  it 
is  made  that  the  contract  works  an  equitable  conversion,  and  it  is 
because  it  works  an  equitable  conversion  that  it  is  supposed  to  pass 
the  land  in  equity,  nor  is  it  possible  to  assign  any  other  time  for 
the  passing  of  the  land  in  equity  prior  to  the  time  fixed  for  the 
completion  of  the  purchase.  Finally,  if,  as  will  be  shown  to  be  the 
fact,  an  equitable  conversion  of  money  into  land  by  means  of  a 
unilateral  covenant  to  purchase  land  or  by  means  of  a  trust  or  duty 
to  purchase  land  never  passes  the  land  in  equity,  this  will  prove 
that  there  is  no  necessary  connection  between  the  indirect  equi- 
table conversion  of  money  into  land  and  the  passing  of  the  title 
to  the  land  in  equity,  and  that  the  former  can  take  place  without 
the  latter;  and  yet  practically  the  only  reason  why  the  courts  have 
declared  that  a  contract  for  the  purchase  and  sale  of  land  passes 
the  land  in  equity  is  that  they  supposed  that  to  be  the  only  theory 
upon  which  the  heir  or  devisee  of  a  purchaser  who  dies  pending 
the  contract,  can  enforce  the  latter  for  his  own  benefit.  Upon  the 
whole,  then,  it  seems  pretty  clear  upon  principle  that  a  contract 
for  the  purchase  and  sale  of  land  has  no  other  effect  in  equity  than 
it  has  at  law  unless  and  until  it  is  broken  by  the  seller's  failure  to 
convey  the  land  according  to  his  agreement,  and  unless  the  pur- 
chaser die  before  any  such  breach,  though,  in  the  latter  event,  the 
purchaser's  right  under  the  contract  will  devolve  in  equity  upon  his 
heir  or  devisee  as  before  stated. 


professedly  decided  the  case  upon  authority,  and  not  upon  principle,  /.  e.,  he  regarded 
it  as  settled  by  authority  that  if  the  testator  had  died  the  day  on  which  he  made  the 
codicil,  but  without  making  it,  the  land  would  have  descended  to  the  heir,  and,  if  so, 
it  ought  to  pass  by  the  first  codicil  to  the  devisee. 

So  in  Goodvvyn  -'.  Lister,  3  P.  Wms.  387,  Lord  Chancellor  Talbot  said  (3SS)  -. 
"  Whenever  one  man  enters  into  articles  for  the  sale  of  an  estate,  and  agrees  to  convey 
it  to  another,  in  consideration  of  a  sum  of  money  engaged  to  be  paid  by  that  other 
person  ;  f?-om  the  time  the  articles  ouoht  to  be  performed,  the  one  becomes  entitled  to 
the  estate,  and  the  other  a  creditor  for  the  purchase-money." 


38d      a  brief  survey  of  equity  jurisdiction. 

What  is  the  effect  in  equity  of  the  contract  for  the  purchase  and 
sale  of  land  upon  the  seller's  right  to  receive  the  purchase  money, 
over  and  above  the  effect  of  the  same  contract  at  law?     It  seems 
that  it  is  nothing.     The  courts  have,  indeed,  tried  hard  to  persuade 
themselves  that,  as  such  a  contract  passes  the  land  in  equity  to  the 
purchaser,  so  it  passes  the  purchase  money  in  equity  to  the  seller. 
It  has  (for  example)  been  a  favorite  saying  with  them  that,  from 
the  moment  when  such  a  contract  is  made,  the  seller  becomes  a 
trustee  of  the  land  for  the  purchaser,  and  the  purchaser  becomes 
a  trustee  of  the  money  for  the  seller;   but  they  have  never  been 
able   to   show   that    the  second  part  of   this  proposition  hss  any 
meaning  or  has  borne  any  fruit,  nor,  in  truth,  has  it  any  meaning 
nor  has  it  ever  borne,  nor  can  it  ever  bear  any  fruit,  and  the  reason 
is  obvious,  namely,  that,  while  the  seller  has  the  same  right  to  have 
the  purchase  money  paid  to  him  that  the  purchaser  has  to  have 
the  land  conveyed  to  him,  there  is  this  difference  between  the  land 
and  the  money,  namely,  that  the  land  is  identified  while  the  money 
is  not,  and  that  difference  renders  it  impossible   that  the   seller 
should  own  the  money,  either  at  law  or  in  equity,  while  it  remains 
in  the  hands  of  the  purchaser,  or  that  the  purchaser  should  hold 
any  specified  money  in  trust  for  the  seller  as  such.     Before  the 
seller  can  become  entitled  to  be  paid  any  specific  money  by  the 
purchaser,  there  must  be  an  appropriation  of  some  specific  money 
to  the  purpose  of  paying  for  the  land,  and  such  an  appropriation 
can  be  made  only  by  the  combined  action  of  the  purchaser  and 

the  seller. 

I  have  heretofore  stated  ^  what  will  become  of  the  purchase 
money  in  the  event  of  the  seller's  dying  pending  the  contract,  i.  e., 
that  his  right  under  the  contract  will,  like  his  other  contractual 
rights,  pass,  at  his  death,  to  his  executor,  who  will,  in  all  respects, 
stand  in  the  shoes  of  the  deceased  as  to  his  right  to  receive  the 
purchase  money,  and  who  will  need  only  the  same  aid  from  equity 
that  the  deceased  would  have  needed,  namely,  that  of  compelling 
an  unwilling  purchaser  to  pay  for  the  land  by  enforcing  the  con- 
tract specifically,  instead  of  leaving  the  seller  or  his  executor  to 
such  special  damages  as  a  jury  will  give  him  for  the  loss  of  the 
bargain.  The  seller's  executor  does,  indeed,  stand  in  greater  need 
of  this  aid  from  equity  than  the  seller  does,  for,  though  the  latter 
fail  to  obtain  specific  performance,  he  will  still  keep  the  land  while, 


1  Supra,  pp.  26S,  269. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         38 1 

upon  the  death  of  the  seller,  the  land  will  devolve,  not  upon  his 
executor,  but  upon  his  heir  or  devisee;  and,  though  it  has  been 
held  that,  if  the  executor  cannot  compel  the  purchaser  to  pay  for 
the  land,  equity  will  compel  the  heir  or  devisee  to  convey  the  land 
to  him,  yet,  as  has  been  seen  in  a  previous  article, Mt  seems  impos- 
sible to  discover  any  principle  which  will  warrant  a  court  of  equity 
in  giving  such  relief 

If  a  person  covenants  that  he  will  lay  out  a  given  sum  of  money 
in  the  purchase  of  land   and  will  settle  the  land  in  such  manner  as 
is  stated  in  the  covenant,  or  if  a  trust  be  created  for  the  same  pur- 
pose, it  is  certain  that  no  land  will  pass  in  equity  to  any  of  the 
persons  in  whose  favor  the  settlement  is  to  be  made  until  the  land 
is  actually  purchased  pursuant  to  the  covenant  or  trust,  for  until 
then   it  is  wholly  uncertain  what  land  will   be  settled.     That  no 
title  to  land  can  pass  from  one  person  to  another,  either  at  law  or 
in  equity,  until  the  land  is  identified,  is  so  plain  a  proposition  that 
it  requires  only  to  be  stated  in  order  to  gain  the  assent  of  every 
intelligent  person.     Fortunately,  however,  it  is  not  necessary,  in 
this  instance,  to  rely  merely  upon  the  intrinsic  merits  of' the  prop- 
osition for  establishing  its  truth,  for  the  proposition  that  no  title 
passes,  in  the  case  now  under  consideration,  is  established  by  an 
experience  which  no  one  can  gainsay.     In  an  English  settlement 
of  land,  the  estates  limited  consist,  as  we  have  seen,^  almost  wholly 
of  estates  for  life  and  estates  tail.     These  estates,  moreover,  origi- 
nally differed  but  little  from  each  other  in  respect  to  the  rights  of 
the  tenant  in  possession,  for  the  time  being;   and,  though  tenants 
in  tail,  if  in  possession  and  of  full  age,  have  now  for  centuries  been 
able  to  exercise  complete  control  over  the  estate,  yet  they  can  do 
so,  even  to  this  day,  only  by  first  converting  the  estate  tail  into  an 
estate  in  fee  simple.     How  can  this  be  done?     It  can  now  be  done 
by  simply  executing  and  acknowledging  a  disentailing  deed,  and 
having  the  same  enrolled,  but,  prior  to  Jan.  i,  1833,  it  could  be 
done  only  by  levying  a  fine  or  suffering  a  common  recovery,  i.  e., 
by  levying  a  fine  a  tenant  in  tail  could  cut  off  his  issue  in  tail,  and 
so  convert  the  estate  tail  into  a  base  fee,  and  by  suffering  a  com- 
mon recovery,  he  could  cut  off,  not  only  his  issue  in  tail,  but  also  all 
those  in  remainder  or  reversion  expectant  upon  the  termination  of 
the  estate  tail,  and  so  convert  the  latter  into  an  estate  in  fee  simple 
absolute.     Could  a  fine  be  levied  or  a  recovery  suffered,  however, 

1  Supra,  pp.  31 1-313.  2  Supra,  p.  3:6. 


382        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

by  a  tenant  in  tail  who  was  so  in  equity  only,  the  legal  estate  being 
in  a  trustee?  Such  a  tenant  could  go  through  the  forms  of  levy- 
ing a  fine  or  suffering  a  recovery,  but  his  acts  would  be  wholly 
inoperative  at  law,  as  courts  of  law  would  regard  him  as  having 
no  estate  whatever  in  the  land.  Courts  of  equity,  however,  could 
never  have  permitted  equitable  estates  tail  to  be  created,  if  a  con- 
sequence had  been  that  they  would  be  inalienable;  and  accord- 
ingly they  held  ^  that  a  fine  levied  or  a  recovery  suffered  by  an 
equitable  tenant  in  tail  was  perfectly  valid  in  equity,  i.  e.,  that  it  had 
the  same  effect  in  converting  the  equitable  estate  tail  into  an  equi- 
table estate  in  fee  simple  that  a  fine  levied  or  a  recovery  suffered 
by  a  legal  tenant  in  tail  has  in  converting  the  legal  estate  tail  into 
a  legal  estate  in  fee  simple.  Suppose,  then,  a  covenant  or  trust  to 
have  been  created,  any  time  in  the  eighteenth  century,  for  laying 
out  money  in  the  purchase  of  land,  and  for  settling  the  land,  and 
that,  if  the  covenant  or  trust  had  been  performed,  one  A,  a  person 
of  full  age,  would  have  been  tenant  in  tail  in  possession  of  the  land, 
but  that  the  covenant  or  trust  had  not  been  performed  and  A  did 
not  wish  to  have  it  performed,  but  wished  to  receive  the  money 
instead.  Prior  to  the  time  of  Lord  Cowper,  he  could  have  obtained 
payment  of  the  money  by  filing  a  bill  and  obtaining  a  decree  for 
its  payment  to  him,  but  Lord  Cowper  refused  to  allow  such  bills, 
or  rather  to  make  such  decrees,^  thinking  them  to  be  in  violation 
of  the  rights  of  those  claiming,  or  who  might  in  future  claim,  under 
the  subsequent  limitations  of  the  settlement,  covenanted  or  directed 
to  be  made,  or  of  those  who  owned  the  reversion,  if  any,  expectant 
on  the  termination  of  all  the  limitations  of  the  settlement.  How 
then  could  A  obtain  the  money,  if  it  was  money  and  not  land  that 
he  wanted?  for  he  was  clearly  entitled  to  obtain  it  in  some  way. 
If  it  was  true  that  A's  right  under  the  unperformed  covenant  or 
trust  already  consisted  in  the  ownership  of  land  in  equity  he  could 
suffer  a  recovery  of  his  existing  equitable  interest,  and  then,  hav- 
ing become  the  person  solely  interested  in  the  performance  of  the 
covenant    or    trust,   and    having    also   destroyed   the  reversion,  if 

1  "Trust  estates  are  by  their  nature  incapable  of  the  process  of  fines  or  recoveries. 
Yet  fines  are  levied,  and  recoveries  are  suffered  of  them ;  and  fines  and  recoveries  are 
as  necessary  to  bar  entails  of  equitable  estates,  as  they  are  to  bar  entails  of  legal 
estates."  Butler's  note  to  Co.  Litt.  290  b,  s.  XVI.  In  Pearson  v.  Lane,  i»/ra,  p.  391, 
the  fine  was  levied,  and  in  Henley  v.  Webb,  infra,  p.  383,  the  recovery  was  suffered,  by 
one  who  had  only  an  equitable  estate  in  the  land. 

2  Colwall  V.  Shadwell,  cited  in  Short  v.  Wood,  i  P.  Wms.  471,  and  in  Chaplin  v. 
Horner,  ibid.  485.    See  a,\soJ>er  Lord  Hardwicke  in  Cunningham  v.  Moody,  i.  Ves.  174. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         383 

any,  expectant  on  the  termination  of  the  limitations  covenanted  or 
directed  to  be  made,  he  could  elect  not  to  have  the  covenant  or 
trust  performed,  and  require  the  money  to  be  paid  over  to  iiim. 
Was  this  course  open  to  him?  No,  it  seems  never  to  have  been 
supposed  or  claimed  by  anyone  that  it  was ;  but,  on  the  contrary, 
it  was  admitted  on  all  hands  that  the  only  way  in  which  A  could 
convert  his  right  into  an  absolute  ownership  of  the  money  was 
by  first  enforcing  specific  performance  of  the  covenant  or  trust, 
and  then  suffering  a  recovery  of  the  land,  and,  finally,  selling  the 
land ;  and  experience  proved  that  the  most  feasible  way  of  doing 
this  often  was  for  A  to  procure  some  landowner  to  convey  an  es- 
tate to  the  person  or  persons  bound  by  the  covenant  or  trust,  on 
receiving  from  him  or  them  the  money  covenanted  or  directed  to 
be  laid  out  in  land,  but  under  an  agreement  with  A  that  the  latter 
should  suffer  a  recovery  of  the  land,  and  thereupon  reconvcy  it  to 
its  original  owner  on  receiving  from  him  the  money  which  he  had 
received  for  the  land.  The  first  time  that  this  device  (which  was 
called  borrowing  the  estate  in  question)  was  resorted  to,  was  in  the 

case  of V.  Marsh,^  1723,  while  the  last  which  appears  in  print 

was  Henley  v.  Webb,^  1820.  In  the  latter,  the  report  states  that 
Henley,  who  occupied  the  position  which  I  have  supposed  A  to 
occupy,  obtained  from  Sir  J.  Webb,  Sept.  15,  1781,  at  the  price  of 
;;^I4,200,  being  the  sum  which  Henley  was  entitled  to  have  laid 
out  in  the  purchase  of  land,  a  conveyance  in  fee  of  an  estate, — 
which  Henley,  on  the  same  day,  conveyed,  at  the  same  price,  to 
the  trustees  of  the  ^^"14,200,  and  soon  afterwards  suffered  a  recov- 
ery thereof,  being  equitable  tenant  in  tail  under  the  trustees;  and, 
having  thus  obtained  the  fee  simple  of  the  estate,  he  reconveyed  it 
to  Webb  at  the  same  price  at  which  he  had  purchased  it,  having 
in  fact  agreed  to  do  so  when  he  made  the  purchase,  the  intent  of 
the  transaction  being  to  make  himself  master  of  the  ^^14,200. 

I  trust  that  the  reader  will  not  want  any  better  proof  than  the 
foregoing  case  affords  that  Henley's  right  to  have  the  ;i^i4,200  laid 
out  in  the  purchase  of  land,  and  to  have  the  land  conveyed  to  him 
in  tail,  did  not  make  him  a  tenant  in  tail  of  land  in  equity.  How, 
then,  are  we  to  account  for  the  fact  that  we  find  the  contrary  so 
constantly  asserted  or  assumed  by  courts  of  equity?  I  fear  we 
shall  have  to   account  for  it  in  the  same  way  in  which  we  have 


1  Reported  by  Peere  Williams  in  a  note  to  Chaplin  v.  Horner,  i  P.  Wms.  4S6. 

2  5  Madd.  407. 


384        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

already  had  to  account  for  so  many  errors,  namely,  by  the  fact 
that  the  courts  of  equity  constantly  assume  that  money  which 
is  only  indirectly  converted  into  land  in  equity  is  so  converted 
directly,  —  in  which  case  the  money  would  in  truth  be  land  in 
equity,  i.  c,  for  the  purposes  of  devolution.  In  Henley  v.  Webb, 
for  example,  if  the  fact  had  been  that  Henley  had  recently  died, 
and  the  court  was  called  upon  to  decide,  and  did  decide,  that,  at 
his  death,  the  £i4.aoo  devolved  upon  his  issue  in  tail  and  the 
court  thought  it  necessary  to  give  a  reason  for  its  decision,  the 
reason  would  undoubtedly  have  been  that  the  ^^14,200  was  land 
in  equity.  Why,  then,  could  not  Henley  have  suffered  a  recovery 
of  the  ^14,200  in  its  quality  of  land,  thus  avoiding  the  expense, 
vexation,  and  delay,  and  even  the  risk  of  failure  by  his  death, 
necessarily  incident  to  the  circuitous  proceedings  detailed  in  the 
report?  Because  a  recovery  never  could  be  suffered,  even  in 
equity,  of  what  was  in  fact  money,  though  it  were,  by  means  of  a 
fiction,  deemed  land  in  equity.^  It  was  only  of  specific  and  iden- 
tified real  estate,  i.  e.,  real  estate  in  fact,  that  a  recovery  could  be 
suffered  or  a  fine  levied,  and  courts  of  equity  differed  from  courts 
of  law  on  that  point  only  in  holding  that  an  equitable  title  to  such 
real  estate  in  the  person  levying  the  fine  or  suffering  the  recovery 
was  sufficient  to  render  the  fine  or  recovery  valid  in  equity.  The 
reader  will  see,  therefore,  that,  when  money  is  covenanted  or 
directed  to  be  laid  out  in  land  and  the  land  to  be  settled,  it  is 
when  the  money  is  thus  laid  out,  and  not  till  then,  that  any  of  the 
persons  in  whose  favor  the  covenant  is  made,  or  the  direction 
given,  first  become,  by  virtue  of  such  covenant  or  direction,  owners 
of  land  in  equity  in  any  other  than  a  purely  fictitious  sense,  even 
assuming  that  the  money  may,  by  a  fiction,  properly  be  termed 
land  in  equity  before  it  is  actually  laid  out  in  land. 

When  a  covenant  or  trust,  instead  of  being  to  lay  out  money  in 
the  purchase  of  land,  and  to  settle  the  land,  is  to  sell  land  and 
make  some  disposition  of  the  proceeds  of  the  sale,  it  is  equally 
clear  that  none  of  those  in  whose  favor  such  proceeds  are  to  be 
disposed  of  can  possibly  acquire  the  ownership,  either  at  law  or  in 
equity,  of  any  specific  money  until  the  land  is  actually  sold,  as, 
until  then,  there  will  be  no  identification  of  any  money.     This  fact, 


1  "  A  fine  cannot  be  levied  of  money  agreed  to  be  laid  out  in  a  purchase  of  land  to 
be  settled  in  tail ;  but  a  decree  can  bind  such  money  equally  as  a  fine  alone  could  have 
bound  the  land  in  this  case,  if  bought  and  settled."  Fer  Sir  John  Trevor,  M.  R.  in 
Benson  v.  Benson,  1  P.  Wms.  130. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         385 

however,  is  not  material  in  respect  to  the  devolution  of  the  rights 
created  by  the  covenant  or  trust,  as  those  rights  will  devolve  in 
the  same  manner,  both  at  law  and  in  equity,  before  the  sale  of  the 
land  as  the  proceeds  of  the  sale  will  devolve  after  the  sale,  namely, 
upon  the  executor  of  the  deceased.  That  this  is  so  as  to  the  equi- 
table conversion  of  the  seller's  land  into  money,  caused  by  the 
ordinary  bilateral  contract  for  the  purchase  and  sale  of  land,  we 
have  already  seen,i  and  the  same  thing  is  true  of  every  indirect 
equitable  conversion  of  land  into  money.  In  respect,  therefore, 
to  the  devolution  of  property  indirectly  converted  in  equity,  our 
view  need  not  be  extended  beyond  the  conversion  of  personal 
property  into  real  property,  and,  in  respect  to  devolution  by  will, 
the  field  is  still  more  narrowed.  In  respect,  indeed,  to  the  equi- 
table conversion  of  money  into  land,  caused  by  the  bilateral  con- 
tract for  the  purchase  and  sale  of  land,  the  right  created  by  the 
contract  in  favor  of  the  purchaser  is  always  devisable,^  and  it  seems 
that  it  will  pass  by  a  specific  devise  of  the  land  contracted  for,  or 
by  a  devise  of  all  the  testator's  real  estate,  or  of  all  his  real  estate 
in  such  a  place,  provided  the  land  contracted  for  is  in  that  place, 
or  by  a  devise  of  the  right  itself  under  any  words  of  description 
which  sufficiently  identify  it;  but  it  seems  that  it  will  not  pass 
under  any  words  which  are  applicable  only  to  personal  estate,  un- 
less the  testator  so  identifies  the  right  as  to  show  that  he  means 
to  pass  It  by  such  words ;  for  there  will  be  no  equitable  conversion 
of  the  purchaser's  money  into  land,  unless  he  be  entitled  to  enforce 
the  contract  specifically,  and,  if  he  be  so  entitled,  the  right  created 
by  the  contract  in  his  favor  will  necessarily  be  a  hereditament,  i.e., 
a  risfht  descendible  to  the  heir.^ 


I   Supra,  pp.  269,  314. 

"  Atcherley  v.  Vernon,  10  Mod.  518;  Davie  v.  Beardsham,  i  Ch.  Cas.  39,3  Ch.  Rep. 
4;  Lady  Fohane's  case,  cited  in  i  Ch.  Cas.  39;  Greenhill  v.  Greenhill,  2  Vern.  679; 
Prideux  v.  Gibben,  2  Ch.  Cas.  144;  Potter  v.  Potter,  i  Ves.  274,  437,  3  Atk.  719; 
Gibson  v.  Lord  Montfort,  i  Ves.  4S5. 

3  In  Rushleigh  v.  Master,  i  Ves.  Jun.  201,  3  Bro.  C.  C.  99,  by  marriage  settlement, 
;^5.ooo,  a  part  of  the  wife's  marriage  portion,  was  vested  in  trustees  in  trust  to  lay  the 
same  out  in  land  to  the  use  of  the  husband  for  life,  remainder  to  wife  for  life,  remain- 
der, in  the  events  which  happened,  to  husband  in  fee ;  and  hence  the  money  belonged 
absolutely  to  the  husband,  subject  only  to  an  equitable  conversion  of  it  in  favor  of  the 
wife  for  her  life  in  the  event  of  her  surviving  the  husband,—  which  she  did.  It  was 
assumed,  however,  that  the  money  was  wholly  converted  into  land  in  equity,  not  only 
as  to  the  wife,  but  as  to  the  hu.sband  as  well.  In  short,  it  was  assumed  that  the  money 
had  ceased  to  have  in  equity  the  quality  of  money,  having  acquired  the  quality  of  land 
instead  ;  and  accordingly,  the  husband  having  died  intestate  as  to  the  £--,,ooo.  it  was 
assumed  that  it  descended  to  his  heir  as  land;  and  the  question  was  whether  it  passed 

25 


386        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

In  respect,  however,  to  equitable  conversions  of  money  into  land 
by  means  of  unilateral  covenants  and  trusts,  it  is  to  be  observed, 
first,  that  such  covenants  and  trusts  are  nearly  always  for  the  pur- 
chase and  settlement  of  land,  and  that  in  all  such  cases  the  equi- 
table conversion  of  the  money  into  land  is,  on  principle,  confined 
to  the  estates  for  life  and  estates  tail  covenanted  or  directed  to  be 
limited  by  the  settlement,  and  hence  the  rights  created  by  such 
covenants  and  trusts  are,  on  principle,  never  devisable,  though  the 
courts  hold,  as  we  have  seen,^  that  the  entire  interest  in  the  money 
is,  in  such  cases,  converted  in  equity  into  land,  not  only  as  to  those 
in  whose  favor  the  land  is  covenanted  or  directed  to  be  settled,  but 
also  as  to  the  settlor  and  those  claiming  under  him.  Secondlv,  a 
devise  of  land  which  has  any  reference  to  "  place  "  will  not  pass  a 
right  created  by  a  covenant  or  trust  to  purchase  and  settle  land,^ 
as  there  is,  in  such  a  case,  no  identified  land,  and  yet  the  testator 
shows,  by  his  reference  to  place,  that  it  was  only  actual  and  identi- 
fied land  that  he  intended  to  devise.  Nor  can  such  a  right,  as  it 
seems,  pass  under  words  of  bequest,  i.e.,  words  which  are  appli- 
cable only  to  personal  estate,  unless  the  testator  shows  affirma- 
tively that  he  intends  to  pass  such  right  under  such  words ;  "^  for 

as  land  under  the  will  of  the  heir,  the  same  having  never  been  laid  out  in  land ;  and  it 
was  held  that  it  did  so  pass,  namely,  under  the  words  "  all  other  my  messuages,  lands, 
tenements,  and  hcreditatnents"  Lord  Thurlow  saying  that  (i  Ves.  Jun.  404  a)  if  the 
testator  had  said,  "all  my  estates  in  law  and  equity,"  this  would  have  passed  ;  and  the 
words  "  all  my  estates  whatsoever  and  where  soever"  are  equally  strong.  He  also  uses 
the  word  "  hereditament,"  and  this  is  a  hereditament,  for  it  is  descendible. 

1  Supra,  pp.  320,  329,  353,  proposition  8. 

2  I  fear,  however,  this  statement  must  rest  upon  principle  rather  than  authority.  In 
Guidot  V.  Guidot,  3  Atk.  254,  Lord  Hardwicke  decided  that  money  which  he  held  to 
be  converted  into  land  passed,  under  the  will  of  the  owner,  by  the  words,  "  Lands 
lying  in  Islington,  and  in  Elsfield  in  Hampshire,  or  elsewhere."  I  say  "money  \vhich 
he  held  to  be  converted  into  laud,"  for  Lord  Hardwicke  treated  the  money  as  con- 
verted "  directly  "  into  land,  and  therefore  as  having  passed  in  its  quality  of  land.  He 
said  (256) :  "  If  it  had  not  been  for  the  locality,  estates  in  Middlesex  and  Hampshire, 
no  doubt  could  have  arisen;  but  then  follows  '  or  elsewhere,'  which  is  the  most  com- 
prehensive word  he  could  have  used.  It  is  said  the  lands  do  not  lie  anywhere,  for  they 
are  not  yet  purchased.  When  people  make  such  descriptions  as  the  testator  had  done 
here,  they  intend  to  pass  everything  they  have  in  the  world ;  now  the  money  is  some- 
where, and  that  by  the  transmutation  of  this  court  is  changed  into  land." 

If  the  case  had  been  one  in  which  the  testator  had  merely  a  right  to  have  money 
exchanged  for  land,  and  to  have  some  estate  in  the  land  conveyed  to  him.  Lord 
llardwicke's  reasoning  would  clearly  not  have  been  applicable  to  it.  Such  a  right  is 
not  situated  anywhere,  as  it  is  incorporeal.  The  case  of  Lingen  v.  Sowray,  i  P.  Wms. 
172,  involved  the  same  point  as  Guidot  v.  Guidot,  and  was  decided  the  same  wav. 

3  Biddulph  V.  Biddulph,  12  Ves.  161  ;  //;  re  Greaves's  Settlement  Trusts,  23  Ch.  D. 
313.  316,  A^  Fry,  J.;  In  r^  Duke  of  Cleveland's  Settled  Estates,  [1893]  3  Ch.  244; 


A   BRIEF  SC'RVEV  OF  EQUITY  JURISDICTION:         387 

the  owner  of  such  a  right  has  no  ownership  of  the  money  with 
which  the  land  is  to  be  purchased,  even  if  such  money  is  identified. 
Yet  here  again  we  are  confronted  with  the  fact  that  the  courts 
unwarrantably  extend  the  doctrine  of  the  equitable  conversion  of 
money  into  land  by  means  of  directions  contained  in  wills  to  cases 
in  which  no  person  has  a  right  to  enforce  such  directions,  i.  e.,  to 
require  an  actual  conversion  to  be  made;  ^  and,  in  all  such  cases, 
the  courts  are  forced  to  treat  the  equitable  conversion  which  they 
assume  to  exist  as  if  it  were  created  by  equity  itself,  i.e.,  as  if  it 
were  direct,  and  hence  to  treat  the  money,  for  the  purposes  of 
devolution,  as  if  it  were  actually  land  in  equity,  instead  of  being 
merely  liable  to  be  exchanged  for  land,  and,  when  that  step  has 
once  been  taken,  it  is  not  difficult  for  the  courts  to  take  another 
step  and  say  that  a  testator  who,  if  there  were  in  truth  an  equitable 
conversion,  would  have  only  a  right  to  have  the  money  laid  out  in 
land,  and  to  have  the  land  settled,  is  the  owner  of  the  money  itself, 
and,  therefore,  that,  while  such  money  will  descend  as  land  in  case 
of  intestacy,  yet  its  owner  may  devise  it  as  land  or  money  at  his 
pleasure.  This  seems  to  be  the  only  way  of  explaining  the  deci- 
sions of  Sir  G.  Jessell,  M.  R.,  and  the  Court  of  Appeal  in  Chandler 
1'.  Pocock.2  If  the  money  in  that  case  had  been  in  truth  indirectly 
converted  into  land  in  equity,  and  the  settlor's  daughter  had  merely 
had  a  right  to  have  land  purchased  with  the  money  and  settled, 
and  the  case  had  been  so  regarded,  it  would  have  been  quite 
impossible  for  the  courts  to  hold  that  such  right  passed  under  a 
bequest  of  all  the  daughter's  personal  estate.  I  have  endeavored, 
however,  to  show,  in  another  place,^  that  there  was  no  indirect 
conversion  of  the  money  into  land  in  equity,  and  the  same  thing 
may  be  proved,  even  more  conclusively,  in  another  way;  for  the 
daughter's  father  settled  the  original  land  only  upon  himself,  the 
daughter's  husband  and  the  daughter,  for  their  respective  lives, 
retaining  in  his  own  hands  the  reversion  in  fee  expectant  upon  the 
determination  of  those  three  life  estates ;  and,  when  the  land  was 
sold  under  the  power  contained  in  the  settlement,  of  course  the 
proceeds  of  the  sale  took  the  place  of  the  land,  and,  when  the 


Chandler  v.  Pocock,  15  Ch.  D.  491,  499,  where  Jessell,  M.  R.,  after  expressing  himself 
to  the  effect  stated  in  the  text,  adds:  "Not  only  is  that  covered  by  authority,  but  I 
should  think  that  the  question  was  not  arguable  at  the  present  day,  as  the  authorities 
are  so  old." 

^  Supra,  p.  353,  proposition  8. 

2  15  Ch.  D.  49[,  499,  16  Ch.  D.  648.  ^  See  supra,  p.  375. 


388        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

daughter  died  and  her  will  took  effect,  the  last  of  the  three  rights 
created  by  the  settlement  came  to  an  end,  the  husband  and  father 
having  previously  died.  It  was  impossible,  therefore,  that  any- 
thing should  pass,  under  what  was  held  to  be  an  appointment  by 
the  daughter's  will,  except  the  fund  produced  by  the  sale  of  the 
land,  and  that  was  all  that  was  held  to  pass;  and,  though  all  the 
difficulty  arose  from  its  being  held,  erroneously,  as  it  is  conceived, 
that  that  fund  had  been  converted  in  equity  into  land,  yet  it  was 
the  assumption  that  the  fund  was  land  in  equity  that  made  possible 
a  decision  which  would  have  been  impossible  on  the  supposition 
that  the  same  fund,  instead  of  being  land  in  equity,  was  merely 
liable  to  be  exchanged  for  land. 

When  a  contract,  trust,  or  duty  to  convert  money  into  land  or 
land  into  money  is  not  performed  as  soon  as  those  in  whose  favor 
the  conversion  is  to  be  made  are  entitled  to  have  it  performed, 
what  compensation  are  the  latter  entitled  to  receive  for  the  delay? 
In  the  case  of  a  bilateral  contract  for  the  purchase  and  sale  of 
land,  neither  party  can  claim  any  compensation  for  non-perform- 
ance by  the  other  until  the  latter  is  in  default,  i.  e.,  has  broken  the 
contract,  and,  as  the  two  sides  of  the  contract  are  to  be  performed 
concurrently,  neither  party  can  put  the  other  in  default  until  he 
has  done  everything  towards  performing  his  own  side  of  the  con- 
tract that  he  can  do  without  the  co-operation  of  the  other.  If, 
therefore,  either  party  desires  a  prompt  performance  by  the  other, 
he  should,  as  soon  as  the  time  for  performance  arrives,  seek  the 
other,  and  notify  him  of  his  own  readiness,  willingness,  and  ability 
to  perform  his  side  of  the  contract,  and  should  offer  to  do  so  if 
the  other  will  concurrently  perform  his  side,  and,  if  the  latter 
refuses  or  neglects  to  do  so,  he  will  be  in  default.  If  a  place,  as 
well  as  a  time,  for  performance  have  been  agreed  upon,  each  party 
must  at  his  peril,  unless  the  contract  have,  in  the  meantime,  been 
performed,  or  the  other  party  put  in  default,  be  at  the  place 
agreed  upon  at  the  close  of  business  hours  on  the  day  agreed 
upon,  and,  if  the  other  party  be  not  there,  he  will  then  be  in 
default.  And  when  either  party  is  thus  put  in  default,  the  other 
will  be  in  a  condition  to  maintain  an  action  at  law  for  damages,  or 
a  bill  in  equity  for  specific  performance,  at  his  option,  and,  in  case 
of  the  latter,  he  will,  besides  specific  performance,  obtain  such 
compensation  for  the  other's  breach  of  contract  as  shall  be  just. 

In   the   case    of  a   unilateral    covenant  to    purchase    land,  the 
covenant  will   be   broken   by  any  failure   of  the    covenantor   to 


A   BRIEF  SURVEY  OF  E  QUI  TV  JURISDICTION.         389 

perform  it  according  to  its  terms,  and,  if  there  be  also  a  covenant 
to  settle  the  land  when  purchased,  he  who  would  have  been 
entitled  to  the  immediate  possession  and  enjoyment  of  the  land, 
if  purchased  in  accordance  with  the  covenant,  will  be  entitled, 
immediately  on  the  breach  of  the  covenant,  to  file  a  bill  and  obtain 
a  decree  for  its  specific  performance,  together  with  a  compensa- 
tion for  the  breach,  and  the  proper  measure  of  such  compensation 
will,  it  seems,  be  the  interest  on  the  money  covenanted  to  be  laid 
out  in  land  from  the  time  when  the  plaintiff  was  entitled  to  have 
the  land  purchased  to  the  time  when  it  is  actually  purchased. 
If  the  breach  shall  consist  only  in  not  settling  the  land  when 
purchased,  the  same  person  will  be  entitled  to  all  the  remedies 
incident  to  an  equitable  ownership  of  land. 

The  reader  must,  however,  bear  in  mind  that  such  unilateral 
covenants  are  commonly  contained  in  marriage  articles  and  mar- 
riage settlements,  made  by  the  intended  husband,  and  that  the 
land  to  be  purchased  is  almost  always  covenanted  to  be  settled, 
in  the  first  instance,  on  the  husband  for  life ;  and,  therefore,  there 
can  be  no  breach  of  the  covenant  till  the  husband's  death. 

In  the  case  of  a  trust  or  duty  to  purchase  and  settle  land,  or  to 
sell  land  and  dispose  of  the  proceeds  of  the  sale,  it  is  plain  that 
the  creator  of  the  trust  or  duty  intends  that  those  in  whose  favor 
the  land  to  be  purchased  is  to  be  settled,  or  in  whose  favor  the 
proceeds  of  the  land  to  be  sold  are  to  be  disposed  of,  shall  enjoy 
the  money  to  be  laid  out  in  land  from  the  time  when  it  is  first 
authorized  to  be  so  laid  out  to  the  time  when  it  shall  be  actually 
laid  out,  or  shall  enjoy  the  land  directed  to  be  sold  from  the  time 
when  it  is  first  authorized  to  be  sold  to  the  time  when  it  is  actually 
sold.  How  shall  the  creator  of  the  trust  or  duty  give  effect  to 
such  his  intention  ?  Clearly,  he  can  do  so  in  one  way  only,  namely, 
by  making  a  gift  of  the  money  or  the  land,  i.  e.,  of  the  income 
of  the  one  or  the  other,  for  the  period  of  time  just  specified,  to 
the  person  or  persons  who  would  have  been  entitled  to  receive 
the  income  of  the  land,  if  the  money  had  been  laid  out  in  land, 
or  to  receive  the  income  of  the  proceeds  of  the  sale,  if  the  land 
had  been  sold,  as  there  would  otherwise  be  a  resulting  trust  as  to 
such  income  in  favor  of  the  creator  of  the  trust  or  of  his  repre- 
sentative, or,  if  a  duty  be  created,  instead  of  a  trust,  the  land  to  be 
sold  or  the  money  to  be  laid  out  will  continue  to  be  the  property 
of  the  creator  of  the  duty,  or  of  his  representative,  both  at  law 
and  in  equity,  until  the  land  is  actually  sold  or  the  money  laid  out. 


390        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

Accordingly,  all  well-drawn  wills  or  deeds,  creating  such  trusts  or 
duties,  contain  such  a  gift  in  express  terms. ^  Suppose,  however, 
the  creator  of  a  trust  or  duty  omits  to  make  any  such  gift?  It 
seems  to  be  clear  that  the  gift  ought  to  be  implied.^ 

It  may  happen  that  the  creator  of  a  trust  or  duty,  instead  of 
making  such  a  gift  of  the  intermediate  income  of  the  money  to  be 
laid  out  in  land  or  of  the  land  to  be  sold,  as  is  indicated  in  the 
preceding  paragraph,  directs  that  the  money  to  be  laid  out  shall 
comprise  not  merely  the  principal  sum  named,  but  also  the  inter- 
mediate income  thereof,  or  that  the  money  to  be  disposed  of  shall 
comprise,  not  only  the  proceeds  of  the  land  to  be  sold,  but  also 


^  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  211  ;  Guidot  v.  Guidot,  3  Atk.  254; 
Doughty  V.  Bull,  2  P.  Wms.  320;  Coventry  v.  Coventry,  2  Atk.  366;  Thornton  v. 
Hawley,  10  Ves.  129;  Williams  v.  Coade,  10  Ves.  500;  Biddulph  v.  Biddulph,  12  Ves. 
161 ;  Kirkman  v.  Miles,  13  Ves.  33S ;  Maugham  v.  Mason,  i  Ves.  &  B.  410;  Hereford 
V.  Ravenhill,  i  Beav.  481,  5  ibid.  51  ;  Wrightson  v.  Macaulay,  4  Hare  4S7  ;  Batteste  v. 
Maunsell,  Irish  Reports,  10  Eq.  97,  314. 

2  A  gift  of  the  proceeds  of  a  sale  of  land  to  A  for  life  is  a  gift  to  him  of  the  rents 
and  profits  of  the  land  till  sale.  In  re  Searle,  [1900]  2  Ch.  829.  This  appears  to  be 
the  true  explanation  of  the  decision  in  Earl  of  Coventry  v.  Coventry,  2  Atk.  366, 
where  a  testator,  being  seised  in  fee  of  the  manor  of  A,  and  having  a  lease  of  the 
manor  of  B,  directed  his  executors  to  exchange  his  manor  of  A  for  the  reversion  of 
the  manor  of  B.  The  manor  of  B,  of  which  the  Church  of  Lincoln  was  seised  in  fee, 
was  situated  in  Oxfordshire,  while  the  manor  of  A  was  situated  in  Lincolnshire  and 
near  the  Church  of  Lincoln,  and,  for  this  or  some  other  reason  or  reasons,  the  testator 
seems  to  have  had  no  doubt  that  the  exchange  which  he  directed  would  be  for  the 
advantage  of  the  Church  of  Lincoln,  and,  in  fact,  he  gives  as  a  reason  for  directing  the 
exchange  that  he  desired  "  to  be  a  benefactor  to  the  Church  of  Lincoln  " ;  and  it 
appears,  therefore,  not  to  have  occurred  to  him  that  the  Church  of  Lincoln  might 
decline  to  make  the  exchange.  Nevertheless,  the  Church  of  Lincoln  did  so  decline, 
and  its  declination  was  the  cause  of  the  present  suit.  The  testator  had  directed  that, 
when  the  exchange  was  made,  the  reversion  of  the  manor  of  B  should  be  settled  on 
his  wife  for  life,  remainder  to  his  issue  male  by  her  in  special  tail,  with  divers 
remainders  over;  and,  under  these  limitations,  the  manor  of  B  would,  if  the  exchange 
had  been  made,  have  been  vested  in  the  plaintiff  for  life  in  possession,  remainder  to 
his  issue  in  tail  male  ;  and,  as  the  exchange  could  not  be  made,  the  plaintiff  insisted 
that  he  was  entitled  to  the  manor  of  A  ;  and  it  would  seem  that,  on  the  principle  stated 
in  the  text,  he  was  entitled  to  the  possession  and  income  of  the  manor  of  A  until  the 
exchange  could  be  made,  and,  if  that  time  never  arrived,  he  and  those  claiming 
under  him  would  be  entitled  to  hold  possession  of  the  manor  of  A  in  perpetuity  ;  and 
Lord  Hardwicke  so  decreed,  saying  (369)  :  "  Where  a  sum  of  money  is  given  by  the 
will  of  a  testator  to  be  laid  out  in  the  purchase  of  lands,  or  of  lands  in  a  particular 
county,  and  after  they  are  bought  to  be  settled  upon  such  and  such  persons,  if  a  bill  is 
brought  here,  the  constant  ordinary  course  is  to  direct  a  purchase,  and  the  produce  of 
the  money  to  go  as  the  land  itself,  till  purchased.  This  comes  very  near  the  present 
case.  ...  It  is  carried  too  far,  when  it  is  said,  no  exchange  can  ever  be  made,  for 
there  is  no  time  fixed  for  it,  and  therefore  there  may  come  a  prebendary  at  Lmccln, 
who  may  consent  to  the  exchange." 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         391 

the  intermediate  income  of  the  land  ;  ^  and,  in  such  a  case,  the 
income  of  the  money  or  land  must,  of  course,  be  accumulated  till 
the  money  is  laid  out,  or  the  land  purchased.  But,  in  the  absence 
of  an  express  direction  to  the  contrary,  it  is  clear  that  the  inter- 
mediate income  will  go  in  the  manner  indicated  in  the  preceding 
paragraph. 

In  the  case  of  Pearson  v.  Lane,^  land  was  conveyed  to  trustees 
in  trust  to  sell  the  same,  and  lay  out  the  proceeds  in  other  land, 
and  settle  the  latter  on  the  grantor  for  life,  remainder  to  the  first 
and  other  sons  of  the  grantor  and  his  then  wife  successively  in  tail, 
remainder  to  their  daughters  as  tenants  in  common  in  tail,  remain- 
der to  the  grantor  in  fee.  Twenty-four  years  afterwards  the 
grantor  died,  leaving  two  daughters,  and  thereupon,  no  sale  of  the 
land  having  been  made,  the  daughters  and  their  husbands  levied 
fines  of  the  land,  and,  twenty  years  later,  the  question  arose 
whether  the  fines  were  valid,  and  had  made  the  daughters  equi- 
table owners  of  the  land  in  fee  simple  absolute.  And  that  was 
supposed  to  depend  upon  whether  the  daughters  had  an  equitable 
freehold  in  the  land  when  the  fines  were  levied.  If  the  land  had 
been  sold,  and  its  proceeds  reinvested  in  other  land,  as  directed, 
the  daughters  would  have  become,  on  their  father's  death,  equitable 
tenants  in  tail  in  possession  of  the  land  purchased,  under  their 
father's  deed  of  trust,  and  equitable  owners  of  the  reversion  in  fee 
by  descent  from  their  father.  Had  they  any  estate  in  the  land  of 
which  the  fines  were  levied?  Clearly,  the  deed  of  trust  gave  them 
none,  either  at  law  or  in  equity.  What,  then,  became  of  the  equi- 
table fee  in  that  land  immediately  on  the  execution  of  the  deed  of 
trust?  It  resulted  to  the  grantor,  though  subject  to  be  devested 
by  a  sale  of  the  land,  as  directed,  and,  on  the  grantor's  death,  it 
descended  to  his  daughters,  though  subject  to  the  same  condition 
subsequent.  By  virtue  of  this  equitable  fee,  the  daughters  could 
have  levied  fines,  but  fines  levied  by  them  would  not  have  de- 
stroyed nor  affected  the  condition  by  which  their  equitable  title 
was  liable  to  be  defeated,  for,  the  title  of  the  trustees  being  legal, 
the  fines  would  have  been  inoperative  and  void  as  to  them.  There 
was,  however,  one  way,  and  one  way  only,  in  which  they  could 
obtain  a  perfect  legal  and  equitable  title  to  the  land,  namely,  by 
filing  a  bill  against  the  trustees  and  compelling  them  to  convey 

1  Short  V.  Wood,  i  P.  Wms.  470;  Pearson  v.  Lane,  17  Yes.  loi ;  Biggs  v,  Andrews, 
5  Sim.  424. 

2  17  Ves.  loi. 


392        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  land  to  the  plaintiffs,  the  ground  for  the  bill  being  that,  if  the 
land  were  sold  and  other  land  purchased,  the  plaintiffs  would  be 
entitled  to  have  the  latter  conveyed  to  them  in  tail,  remainder  to 
them  in  fee,  and  then  they  could,  by  levying  fines,  convert  their 
estate  tail  into  a  fee  simple  absolute,  and,  therefore,  as  they  could 
not  levy  fines  effectively  of  the  land  held  by  the  trustees,  they 
were  entitled  to  have  the  latter  conveyed  to  them  in  fee  simple 
without  the  levying  of  fines,  their  bill  being  a  sufficient  substitute 
for  fines. 

Sir  W.  Grant,  M.  R.,  held,  however,  that  the  daughters  and 
their  husbands  had  acquired  a  perfect  title  to  the  land  by  the  fines 
which  they  had  levied,  he  being  of  opinion  that  the  daughters  were 
equitable  tenants  in  tail  of  the  land  when  the  fines  were  levied, 
and  hence  that  the  fines  had  made  them  equitable  tenants  in  fee 
simple;  and,  though  it  does  not  appear  that  they  had  obtained  any 
conveyance  of  the  legal  title,  yet  np  objection  was  taken  to  the 
title  on  that  ground,  nor  does  the  case  give  any  information  as  to 
the  trustees  or  their  acts  subsequent  to  the  conveyance  of  the  land 
to  them.  Upon  what  ground  did  Sir  W.  Grant  hold  that  the 
daughters  were  equitable  tenants  in  tail  of  the  land  when  the  fines 
were  levied?  Upon  the  ground,  first,  that,  though  the  deed  of 
trust  gave  them  in  terms  no  estate  in  the  land  to  be  sold,  yet,  as 
the  trustees  took  only  a  naked  legal  title,  and  the  equitable  title 
must  be  somewhere,  a  court  of  equity  would  ascertain  where  it 
was  by  inquiring  for  whose  benefit  the  trust  existed,  i.e.,  who  was 
the  cestui  que  trust,  and  that  here  the  grantee's  daughters  were  the 
cestuis  que  trust,  and  consequently  they  took,  under  the  trust  deed, 
the  same  equitable  estate  that  they  would  have  taken  in  the  land 
to  be  purchased,  when  purchased,  namely,  an  equitable  estate  tail. 
To  this,  however,  it  may  be  answered  that,  though  the  daughters 
were  cestuis  que  trust  under  the  trust  deed,  yet  they  were  to  enjoy 
the  land  vested  in  the  trustees  only  in  the  mode  pointed  out  by  the 
creator  of  the  trust,  namely,  by  its  sale  and  the  investment  of  the 
proceeds  in  other  land,  and  that  this  was  absolutely  inconsistent 
with  their  having  any  interest  in  the  land  to  be  sold,  except  for 
so  long  as  it  should  remain  unsold. 

Sir  W.  Grant  says:  ^  "  Where  money  is  given  to  be  laid  out  in 
land,  which  is  to  be  conveyed  to  A,  though  there  is  no  gift  of  the 
money  to  him,  yet  in  equity  it  is  his;   and  he  may  elect  not  to 

1  P.  104. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         393 

have  it  laid  out:  so,  on  the  other  hand,  where  land  is  given  upon 
a  trust  to  sell,  and  to  pay  the  produce  to  A,  though  no  interest  in 
the  land  is  expressly  given  to  him,  in  equity  he  is  the  owner;  and 
the  trustee  must  convey,  as  he  shall  direct."  Undoubtedly  this 
is  true,^  but  why?  Because  A,  being  made  the  absolute  owner  of 
the  land  in  which  the  money  is  to  be  laid  out,  or  of  the  proceeds 
of  the  land  to  be  sold,  the  direction  to  lay  the  money  out  in  land,' 
or  to  purchase  land,  is  inoperative  and  void.  As  A  alone  is  inter- 
ested in  the  question  whether  the  money  shall  be  laid  out  in  land, 
or  whether  the  land  shall  be  sold,  so  he  alone  has  a  voice  in  the 
decision  of  that  question.  It  follows,  therefore,  that,  while  in 
terms  the  gift  to  A  is  only  of  the  land  in  which  the  money  is  to  be 
laid  out,  or  of  the  proceeds  of  the  land  to  be  sold,  the  gift  to  him 
is,  in  legal  effect,  of  the  money  to  be  laid  out,  or  of  the  land  to 
be  sold,  the  direction  to  lay  out  the  one,  or  to  sell  the  other,  going 
for  nothing.  Why,  then,  does  the  law  thus  wholly  change  the  sub- 
ject of  the  gift,  instead  of  simply  giving  effect  to  it  according  to  its 
terms?  Because  the  law  cannot  do  the  former  for  the  reason  just 
stated,  and,  therefore,  it  does  the  latter  to  prevent  the  purpose  of 
the  giver  from  being  totally  defeated.  The  law,  therefore,  changes 
the  subject  of  the  gift  for  the  best  of  reasons,  namely,  itt  res  magis 
vale  at  qtiam  p  ere  at. 

1  A  gift  of  the  proceeds  of  a  sale  of  land  is  an  absolute  gift  of  the   land  itself. 
In  re  Daveron,  [1S93]  3  Ch.  421,  424. 


ARTICLE     XVI  I.^ 


EQUITABLE    CONVERSION. 
VII. 

WHAT  is  the  duration  of  an  indirect  equitable  conversion  of 
land  into  money  or  of  money  into  land?  It  is  the  same  as 
that  of  the  contract,  trust,  or  duty  which  brings  it  into  existence, 
or,  more  strictly,  it  is  the  same  as  that  of  the  right,  which  such 
contract,  trust,  or  duty  creates,  to  have  an  actual  conversion  made, 
and  to  receive  some  portion  of  the  money  or  land  into  which  the 
actual  conversion  is  to  be  made,  or  some  limited  interest  in  such 
money  or  land ;  and  the  duration  of  this  right  is  not  always  the 
same  as  that  of  the  contract,  trust,  or  duty  which  creates  it,  as  the 
latter  may  be  conditional,  i.  c,  subject  to  a  condition  precedent, 
and  in  that  case  the  right  is  not  created  until  the  condition  is  per- 
formed or  satisfied.  A  distinction  must,  however,  be  made  between 
a  contract,  trust,  or  duty  which  is  conditional  and  one  which  is  not 
to  be  performed  till  a  future  day,  for  the  mere  fact  that  a  contract, 
trust,  or  duty  is  not  to  be  performed  till  a  future  day  does  not  pre- 
vent or  delay  the  creation  of  a  right,  —  it  merely  renders  the  right 
incapable  of  being  enforced  until  the  time  arrives  when  the  con- 
tract, trust,  or  duty  is  to  be  performed.  If,  indeed,  an  indirect 
equitable  conversion  were  an  equitable  substitute  for  an  actual  con- 
version, i.  c,  if  it  were  an  equitable  exchange  of  money  for  land  or 
land  for  money,  it  would  follow  that  a  contract,  trust,  or  duty  to 
make  an  actual  conversion  at  a  future  day  could  not  cause  an  equi- 
table conversion  before  that  day  arrived ;  but,  as  an  equitable  con- 
version merely  causes  the  right  to  have  an  actual  conversion  made 

1  19  Harv.  L.  Rev.  321. 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         395 

to  devolve  as  the  thing  into  which  the  conversion  is  to  be  made 
would  devolve,  if  the  conversion  had  been  actually  made,  it  is  plain 
that  the  equitable  conversion  should  come  into  existence  as  soon 
as  the  right  is  created.  If,  therefore,  land  be  conveyed  by  deed  in 
trust  to  sell  the  same,  and  dispose  of  the  proceeds  as  directed  by 
the  deed,  the  equitable  conversion  will  take  effect  on  the  delivery 
of  the  deed,  though  the  sale  be  not  to  be  made  till  the  grantor's 
death,^ 

As  a  deed  takes  effect  the  moment  that  it  is  delivered,  while  a 
will  takes  effect  the  moment  the  testator  dies,  it  follows  that,  in  the 
absence  of  any  suspensive  condition,  there  will  be  a  corresponding 
difference  in  the  time  when  an  equitable  conversion  will  take  effect, 
according  as  it  is  created  by  a  deed  or  by  a  will,  i.  e.,  that,  if  cre- 
ated by  a  deed,  it  will  take  effect  on  the  delivery  of  the  deed,  and 
consequently  during  the  lifetime  of  the  person  who  creates  it, 
while,  if  created  by  will,  it  will  not  take  effect  till  the  moment  of 
the  testator's  death.^ 

There  being,  then,  no  room  for  doubt  as  to  when  an  indirect 
equitable  conversion  begins,  the  only  remaining  question  upon 
which  the  duration  of  such  a  conversion  depends  is,  when  does  it 
end?  This  question,  however,  is  much  wider  and  incomparably 
more  difficult  than  the  question  when  does  it  begin,  and  the  answer 
to  it  is  also  much  less  certain.  There  is,  indeed,  a  limit  of  time  be- 
yond which  it  is  not  possible  that  any  indirect  equitable  conversion 
should  endure,  namely,  the  time  when  the  right  which  brought  it 
into  existence  is  extinguished  by  a  performance  of  the  correlative 
obligation  or  duty.  It  seems  possible  also,  upon  principle,  to  go 
a  step  further  by  saying  that  no  equitable  conversion  can  endure 
after  the  contemplated  actual  conversion  is  made,  for  an  equitable 
conversion  is  always  and  necessarily  superseded  by  the  actual  con- 
version in  contemplation  of  which  the  equitable  conversion  was 
created.  Moreover,  though  the  right  which  brought  the  equitable 
conversion  into  existence  may  not  be  entirely  extinguished,  yet  its 
nature  will  then  be  changed.  Thus,  in  the  case  of  the  ordinary 
contract  for  the  purchase  and  sale  of  land,  if  the  vendor  convey 
the  land  without  requiring  the  concurrent  payment  of  the  purchase 
money,  his  land  will  thereby  be  actually  converted  into  money,  and, 
though  the  vendor  will  still  be  entitled  to  receive  the  money  from 

1  See  Clarke  v.  Franklin,  4  Kay  &  J.  257.     And  see  supra,  p.  358,  n.  2. 

2  Elliott  V.  Fisher,  12  Sim.  505.  See  also  the  judgment  of  Wigram,  V.  C,  in 
Griffith  V.  Ricketts,  7  Hare  299,  311-312. 


396        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

the  purchaser,  yet  his  right  to  receive  it  will  have  undergone  a  rad- 
ical change,  the  relations  between  the  parties  to  the  contract  having 
ceased  to  be  those  of  vendor  and  purchaser  and  having  become 
that  of  debtor  and  creditor.  So  if  the  purchaser  voluntarily  pay 
the  purchase  money  without  requiring  a  concurrent  conveyance  of 
the  land,  his  money  will  thereby  be  actually  converted  into  land, 
and,  though  the  purchaser  will  still  be  entitled  to  receive  a  convey- 
ance of  the  land  from  the  vendor,  yet  his  right  to  receive  it  will 
have  become  that  of  an  equitable  owner  of  the  land,  and,  in  fact, 
the  contract  which  caused  the  equitable  conversion,  as  also  in  the 
case  previously  put,  will  have  come  to  an  end.  So  if  a  covenant 
be  made,  or  a  trust  be  created  to  lay  out  money  in  the  purchase  of 
land,  and  to  settle  the  land,  and  the  land  be  purchased,  the  money 
will  be  actually  converted  into  land,  and  though  the  person  or  per- 
sons in  whose  favor  the  settlement  was  to  be  made  will  still  be  en- 
titled to  have  it  made,  yet  he  or  they  will  be  so  entitled,  not  by 
virtue  of  the  original  right  created  by  the  covenant  or  trust,  but  by 
virtue  of  an  equitable  ownership  of  the  land  purchased,  coexten- 
sive with  the  legal  ownership  which  he  or  they  would  have  acquired 
if  the  settlement  had  been  made.  Finally,  if  a  duty  be  created  to 
purchase  and  settle  land,  for  example,  if  a  testator  direct  his  ex- 
ecutor to  lay  out  money  in  the  purchase  of  land  and  to  settle  the 
land,  and  the  executor  purchase  the  land  and  receive  a  conveyance 
of  it,  the  money  will  be  thereby  actually  converted  into  land,  and 
the  duty  imposed  upon  the  executor  will  be  performed,  the  legal 
title  to  the  land  will  have  vested  in  him,  and  he  will  hold  it  as 
a  trustee  for  those  in  whose  favor  the  settlement  was  directed  to 
be  made. 

How  may  an  indirect  equitable  conversion  be  ended  without  any 
performance  of  the  contract,  trust,  or  duty  by  which  it  was  brought 
into  existence?  In  the  case  of  a  contract  for  the  purchase  and  sale 
of  land,  the  equitable  conversion  in  favor  of  each  party  to  the  con- 
tract will  come  to  an  end  whenever  the  contract  comes  to  an  end, 
and  how  the  contract  may  be  brought  to  an  end  without  being  per- 
formed is  a  question  which  belongs  to  the  subject  of  contracts  rather 
than  to  that  of  equitable  conversion.  The  equitable  conversion  in 
favor  of  either  party  will  also  be  ended  by  a  total  breach  of  the 
contract  by  him,  or  by  his  losing  the  right  to  enforce  the  specific 
performance  of  it. 

An  equitable  conversion  created  by  a  covenant,  trust,  or  duty  to 
purchase  and  settle  land,  is  seldom  put  an  end  to  in  either  of  the 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         397 

modes  mentioned  in  the  last  paragraph.  It  is,  however,  liable  to 
be  put  an  end  to  otherwise  than  by  a  performance  of  the  covenant, 
trust,  or  duty,  and  that,  too,  in  modes  which  are  peculiar  to  this 
class  of  covenants,  trusts,  and  duties,  and  which  constitute  an  im- 
portant branch  of  equitable  conversion. 

Such  an  equitable  conversion  will  be  put  an  end  to  by  the  com- 
plete exhaustion  of  the  gift  or  gifts  which  are  made,  or  covenanted 
to  be  made,  of  the  land  to  be  purchased.  As  no  such  equitable 
conversion  can  come  into  existence  without  some  such  gift  or 
gifts,  it  necessarily  follows  that  there  will  cease  to  be  any  such 
conversion  when  there  ceases  to  be  any  such  gift;  and  this  propo- 
sition rests  upon  authority,  as  well  as  upon  principle,  in  the  case 
of  a  covenant  to  purchase  and  settle  land,^  though,  in  the  case  of 
a  trust  or  duty  created  by  will  for  the  same  purpose,  the  authorities 
do  not  recognize  the  necessity  of  any  gift  of  the  land  to  be  pur- 
chased either  to  cause  an  equitable  conversion  or  to  keep  it  in 
existence.^  This,  however,  is  not  because  the  two  cases  differ  at 
all  in  principle,  but  because  the  authorities  applicable  to  the  one 
case  differ  from  those  applicable  to  the  other. 

How  is  the  exhaustion  of  such  gift  or  gifts  liable  to  happen? 
By  the  death,  or  the  death  and  failure  of  issue  of  all  the  persons 
in  whose  favor  they  are  made.  When  the  equitable  conversion  is 
caused  by  a  covenant  to  purchase  and  settle  land,  the  settlement 
covenanted  to  be  made  is  generally  limited  to  estates  for  life  and 
estates  tail,  the  ultimate  reversion  in  fee  simple  being  retained  by 
the  settlor,  while,  in  the  case  of  a  trust  or  duty  created  by  will  for 
the  same  purpose,  the  settlement  directed  generally  extends  to  the 
entire  fee  simple.  This  difference,  however,  in  the  extent  of  the 
settlement,  does  not  affect  the  extent  of  the  equitable  conversion, 
which  in  either  case  will  extend  only  to  the  estates  for  life  and 
estates  tail  covenanted  or  directed  to  be  limited,  for,  in  respect  to 
the  equitable  conversion,  it  is  not  at  all  material  whether  the  ulti- 
mate fee  simple  in  the  land  to  be  purchased  be  retained  by  the 
settlor  as  a  reversion,  or  be  limited  to  someone  else  by  way  of 
remainder.  If  it  be  retained  by  the  settlor,  he  will  be  the  absolute 
owner  of  the  money  to  be  laid  out  subject  only  to  the  rights  of 
those  in  whose  favor  estates  for  life  or  estates  tail  are  to  be  limited. 
So  long  as  there  exists  any  person,  who  in  case  the  money  be  laid 


1  See  supra,  p.  323. 

2  Supra,  p.  353,  proposition  8. 


398        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

out  will  be  entitled  to  have  the  land  conveyed  to  him  for  an  estate 
for  life  or  in  tail  in  possession,  that  person  alone  will  be  entitled  to 
require  land  to  be  purchased  with  the  money  and  settled.  When 
there  ceases  to  be  any  such  person,  the  right  of  the  settlor  to  the 
money  will  be  absolute,  and  though  he,  or  anyone  in  whom  his 
right  shall  be  vested,  will  be  entitled  to  purchase  land  with  the 
money  if  he  chooses,  it  will  be  by  virtue  of  his  absolute  ownership 
of  the  money,  and  not  by  virtue  of  any  relative  right,  and  it  is 
a  relative  right  alone  that  can  cause  an  equitable  conversion.^ 
Moreover,  what  is  thus  true  of  a  settlor  who  retains  the  ultimate 
fee  simple  of  the  land  to  be  purchased,  is  also  true  of  a  remainder- 
man to  whom  such  ultimate  fee  simple  shall  be  covenanted  or 
directed  to  be  limited.-  The  conclusion,  therefore,  is  that  every 
equitable  conversion  caused  by  a  covenant,  trust,  or  duty  to  lay 
out  money  in  the  purchase  of  land,  and  to  settle  the  land,  will 
necessarily  come  to  an  end  as  soon  as  there  ceases  to  be  any 
person  who  is  entitled  to  have  the  money  laid  out  in  the  purchase 
of  land,  and  to  have  the  land  conveyed  to  him  for  an  estate  for  life 
or  in  tail  in  possession. 

The  equitable  conversion  caused  by  a  covenant,  trust,  or  duty  to 
lay  out  money  in  the  purchase  of  land  and  to  settle  limited  inter- 
ests in  the  land,  will  also  come  to  an  end  whenever  any  person 
shall  acquire  an  absolute  ownership  of  the  money,  though  such 
limited  interests  covenanted  or  directed  to  be  settled  in  the  land 
to  be  purchased  be  not  exhausted ;  and  such  absolute  ownership 
of  the  money  may  now  ^  be  acquired  by  any  person,  of  full  age 
and  SHI  Juris,  who  is  entitled  to  an  estate  tail  in  possession  in  the 
land  to  be  purchased,  and  to  have  the  same  purchased  immedi- 
ately. How  may  such  a  person  acquire  an  absolute  ownership  of 
the  money?  The  answer  to  that  question  involves  a  little  history. 
Prior  to  the  time  of  Lord  Chancellor  Cowper,  the  Court  of  Chan- 
cery would  decree  the  payment  of  it  to  him  upon  his  filing  a  bill 
for  that  purpose.*  The  theory  upon  which  this  was  done  was  that, 
if  the  land  were  actually  purchased,  he  could  convert  his  estate 


1  Sufra,  pp.  307,  309,  319-320. 

2  At  p.  327,  I  erroneously  stated  that,  in  the  case  of  a  trust  to  purchase  land 
and  convey  the  same  to  "  A  for  life,  remainder  to  B  in  tail,  remainder  to  C  in  fee, 
there  will  be  a  conversion  in  equity  of  the  entire  interest  in  the  money  into  land." 

3  See  3  &  4  \Vm.  IV.  c.  74. 

*  Per  Vernon,  arguendo,  in  Chaplin  v.  Horner,  I  P.  Wms.  483,  485;  per  Lord  Hard- 
wicke  in  Cunningham  v.  Moody,  i  Ves.  174,  176. 


A    BRIEF  SURVEY  OF  E(2UITY  JURISDICTION.         399 

tail  into  an  estate  in  fee  simple  by  suffering  a  common  recovery; 
and,  as  a  recovery  could  not  be  suffered  of  money,  though  con- 
verted in  equity  into  land,  equity  was  bound  to  provide  some  sub- 
stitute for  it,  and  that  a  bill  in  equity  was  the  only  substitute  that 
equity  could  provide.  Lord  Cowper,  however,  refused  to  allow 
such  a  bill,^  thinking  it  an  infringement  of  the  rights  of  those  who 
might  become  entitled  to  the  land  by  way  of  remainder  or  rever- 
sion expectant  on  the  termination  of  the  estate  tail  in  question, 
and  the  rule  thus  established  was  followed  till  the  end  of  the  eigh- 
teenth century,  when  the  old  rule  was  restored  by  Lord  Eldon's 
Act,'-^  and  the  court  was  also  authorized  to  grant  the  relief  upon  peti- 
tion without  the  filing  of  a  bill.  That  Act  remained  in  force  until 
it  was  superseded  by  7  Geo.  IV.,^  which,  however,  differed  from 
Lord  Eldon's  Act  only  in  being  more  comprehensive.  The  latter 
Act  was  in  turn  superseded  by  3  and  4  Wm.  IV.,*  which  intro- 
duced very  radical  changes. 

The  substitute  for  common  recoveries  which  was  originally 
adopted  by  the  Court  of  Chancery,  and  restored  by  Lord  Eldon's 
Act  was,  like  common  recoveries  themselves,  open  to  two  very 
serious  objections,  namely,  first,  it  required  a  considerable  amount 
of  time  to  carry  it  through,  and  in  the  meantime  the  person  on 
whose  behalf  the  bill  or  petition  was  filed  might  die,  and  thus  his 
purpose  be  wholly  defeated.  His  loss  would,  of  course,  be  the 
gain  of  the  person  next  entitled,  but  it  would  be  a  gain  for  which 
he  would  be  indebted  solely  to  accident,  and  to  which  he  would 
have  no  claim  in  justice.  Secondly,  the  filing  of  a  bill  and  obtain- 
ing a  decree  thereon  was  attended  with  a  relatively  great  and  unne- 
cessary expense.  Common  recoveries  being  also  open  to  the  same 
two  objections  in  at  least  an  equal  degree,  they  were  abolished  by 
3  and  4  Wm.  IV.  c.  74,  and  disentailing  deeds  substituted  in  their 
place.     Moreover,  by  section  71  of  the  same  Act,  a  disentailing 


1  Colwall  V.  Shadwell,  stated  by  Lord  Parker  in  Short  v.  Wood,  i  P.  Wms.  470, 
471,  and  by  Vernon,  arguendo,  in  Chaplin  v.  Horner,  i  P.  Wms.  485.  It  does  not 
appear  in  what  year  Colwall  v.  Shadwell  was  decided.  It  could  not,  however,  have 
been  earlier  than  1714,  as  Cowper  did  not  become  Lord  Chancellor  until  September  of 
that  year.  The  case  of  Benson  v.  Benson,  Mich.,  1710,  i  P.  Wms.  130,  before  Sir 
John  Trevor,  M.  R.,  was  therefore  correctly  decided  in  accordance  with  the  old  rule, 
though  the  learned  judge  seems  to  have  made  the  singular  mistake  of  supposing  that 
a  common  recovery  would  not  have  been  necessary  to  make  the  plaintiff  the  absolute 
ownerin  fee  simple  of  the  land  to  be  purchased,  and  that  a  fine  would  have  been  suffi- 
cient.    See  also  Collet  v.  Collet,  I  Atk.  11  ;  Calthrope  v.  Gough,  4  T.  R.  707,  n.  a. 

2  39  &  40  Geo.  III.  c.  56.  8  c.  45.  *  c.  74. 


400        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

deed  was  provided  as  a  substitute  for  a  bill  or  petition  in  equity  in 
case  of  money  converted  in  equity  into  land,  i.  e.,  it  was  provided 
that  a  disentailing  deed  of  assignment  of  the  money,  executed  and 
delivered  by  a  person  entitled  to  have  the  money  laid  out  in  the 
purchase  of  land,  and  to  have  the  land  conveyed  to  him  for  an 
estate  tail  in  possession,  should  transfer  the  absolute  ownership  of 
the  money. 

Suppose  one  A  to  have  been  entitled,  prior  to  the  Act  just 
referred  to,  to  have  money  laid  out  in  the  purchase  of  land,  and 
to  have  the  land  conveyed  to  him  for  an  estate  tail  in  possession, 
with  remainder,  immediately  expectant  on  the  termination  of  such 
estate  tail,  to  him  in  fee,  or  that  he  otherwise  acquire  the  right  to 
have  the  remainder  or  reversion  in  fee  expectant  on  the  termina- 
tion of  his  estate  tail,  conveyed  to  him :  It  would  still  be  true 
that  A  would  not  be  the  absolute  owner  of  the  money,  as  the 
estate  tail  would  not  merge  in  the  remainder  or  reversion  in  {cq} 

1  There  are,  however,  one  or  two  authorities,  in  the  first  half  of  the  eighteenth  cen- 
tury, which  it  seems  impossible  to  reconcile  either  with  the  other  authorities  or  with 
principle.  Thus,  in  Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  171,  where,  by  mar- 
riage settlement,  the  intended  husband  covenanted  that  ;^io,ooo,  part  of  the  intended 
wife's  marriage  portion,  should  be  laid  out  in  the  purchase  of  land,  and  that  the  land 
should  be  settled  on  himself  for  life,  remainder  to  the  first  and  other  sons  of  the 
marriage,  successively,  in  tail  male,  remainder  to  himself  in  fee,  and  the  husband  after- 
wards died,  leaving  one  son,  issue  of  the  marriage,  who  attained  twenty-one,  but  died 
soon  after  without  issue  and  intestate,  Lord  Macclesfield  said  (p.  174) :  "  If  there  had 
been  so  much  as  a  parol  direction  from  the  last  Lord  Warwick,  for  the  payment  of  this 
^  10,000  to  his  mother  the  Countess  dowager,  I  should  have  had  a  regard  to  it;  being 
of  opinion  that  it  was  in  the  election  of  the  last  Earl  to  have  made  this  money,  or  to 
have  disposed  of  it  as  money."  If  the  money  had  been  laid  out  in  land,  as  the  last 
Lord  Warwick  would  have  been  tenant  in  tail  male  of  the  land,  with  remainder  to 
himself  in  fee,  he  could,  by  levying  a  fine,  have  made  himself  tenant  in  fee  simple 
absolute.  So  also,  though  no  fine  were  levied,  his  estate  tail  would  have  expired  on 
his  death  without  issue  male,  and  his  remainder  would  have  become  a  fee  simple  in 
possession,  and  therefore  he  might  have  devised  the  land  in  fee  simple,  and  the  devise 
would  have  taken  effect  according  to  its  terms,  and,  if  he  had  conveyed  away  his 
remainder  by  deed,  it  would  have  become  a  fee  simple  in  possession  in  the  grantee  at 
the  moment  of  the  grantor's  death ;  but  the  only  way  in  which  the  last  Lord  Warwick 
could  have  made  himself  tenant  in  fee  sim])le  in  possession  of  the  land  during  his  own 
life  would  have  been  by  levying  a  fine,  as  stated  in  the  text.  It  follows,  therefore,  that 
the  only  way  in  which  he  could  make  himself  the  absolute  owner  of  the  ;^io,ooo  dur- 
ing his  life  was  by  filing  a  bill  and  obtaining  a  decree  for  the  payment  of  it  to  him  ; 
for,  if  he  had  obtained  payment  of  it  to  himself  without  a  decree,  and  had  died,  leaving 
a  son,  the  latter  could  have  required  the  money  to  be  laid  out  in  land  for  the  purposes 
of  the  settlement,  even  though  the  father  had  disposed  of  it  during  his  life.  What 
Lord  Macclesfield  said,  however,  was  only  a  dictum,  no  such  case  being  before  him. 
But  so  much  cannot  be  said  of  the  case  of  Trafford  v.  Boehm,  3  Atk.  440,  where  a 
woman,  about  to  marry,  assigned  money  to  trustees  in  trust  to  lay  th ;  same  out  in 


A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        401 

On  the  other  hand,  A  could  put  an  end  to  his  estate  tail  without 
suffering  a  common  recovery,  i.  e.,  he  could,  by  levying  a  fine 
convert  his  estate  tail  into  a  base  fee,  which,  by  uniting  with  the 
remainder  or  reversion  in  fee,  would  form  a  fee  simple  absolute. 
A  fine  could  not  be  levied,  however,  any  more  than  a  recovery 
could  be  suffered,  of  money,  even  though  it  were  converted  in 
equity  into  land.^  Would  then  the  Court  of  Chancery  decree 
payment  of  the  money  to  A  on  his  filing  a  bill  for  the  purpose  of 
obtaining  such  payment?  So  long  as  that  court  held  such  a  bill 
to  be  an  adequate  substitute  for  a  common  recovery,  it  followed, 
a  fortiori,  that  it  must  be  held  to  be  an  adequate  substitute  for  a 

land,  and  to  settle  the  land  on  her  intended  husband  and  herself  for  their  respective 
lives  and  the  life  of  the  survivor,  remainder  to  the  first  and  other  sons  of  the  marriage 
successively  in  tail  male,  remainder  to  the  daughters  of  the  marriage  as  tenants  in 
common  in  tail  general,  remainder  to  the  survivor  of  husband  and  wife  in  fee,  and 
there  were  several  children  of  the  marriage,  and,  the  wife  being  dead,  and  the  money 
not  having  been  laid  out  in  land,  and  being  in  the  husband's  possession,  who  (as  the 
Lord  Chancellor  said)  regarded  it  as  absolutely  his  own,  he  gave  the  same  by  his  will 
to  his  eldest  son,  giving  legacies  also  to  his  other  children ;  and,  after  his  death,  all 
the  children  accepted  the  legacies  given  to  them  in  full  of  all  claims  against  their 
father's  estate,  and  discharged  his  executors;  and  Lord  Hardwicke  held  that  these 
acts  barred  the  claims,  not  only  of  all  the  other  children  under  their  mother's  settle- 
ment, but  of  their  issue  as  well,  and  made  the  eldest  son  the  absolute  owner  of  the 
money. 

On  the  death  of  the  father,  his  eldest  son  became  entitled,  under  his  mother's  settle- 
ment, to  have  the  money  in  question  laid  out  in  land,  and  to  have  the  land  conveyed 
to  him  in  tail  male  in  possession,  remainders  over  in  tail  to  his  brothers  and  sisters, 
and  he  was  also  entitled,  under  his  father's  will,  to  have  the  ultimate  remainder  in  fee 
in  the  land  conveyed  to  him,  and  therefore  he  might  have  made  himself  the  absolute 
owner  of  the  money  by  filing  a  bill,  making  all  his  brothers  and  sisters  defendants 
thereto,  and  obtaining  a  decree  for  the  payment  of  the  money  to  him,  but  it  is  not 
perceived  how  his  possession  of  the  money  could,  without  a  decree,  affect  the  rights 
of  the  issue  of  his  brothers  and  sisters.  Lord  Hardwicke  says  the  fact  that  he  already 
had  the  money  in  his  own  hands  precluded  his  filing  such  a  bill  as  I  have  mentioned. 
That  difficulty  was  one,  however,  which  he  had  to  meet  the  best  way  he  could,  for 
example,  by  returning  the  money  (which  he  had  no  right  to  the  possession  of)  to  his 
mother's  trustees.  Lord  Hardwicke  also  says  a  court  of  equity  decrees  to  a  party  only 
what  he  is  entitled  to  before  the  decree  is  made.  If,  however,  the  bill  and  the  decree 
in  question  served  as  a  substitute  for  a  fine,  it  follows  that  they  constituted  an  excep- 
tion to  Lord  Hardwicke's  rule,  and  would  have  created  a  new  right  in  the  plaintiff. 

It  may  be  added  that  the  eldest  son  died  without  issue  about  six  years  after  the 
death  of  his  father  and  about  six  years  before  Lord  Hardwicke's  decision,  and,  about 
twenty  months  after  the  death  of  the  eldest  son,  the  second  son  died,  leaving  an  infant 
son.  The  latter  was,  therefore,  under  his  grandmother's  settlement,  entitled,  on  the 
death  of  his  father,  to  have  the  money  in  question  laid  out  in  land,  and  to  have  the 
land  conveyed  to  him  in  tail  male  in  possession,  and,  of  course,  he  was  not  bound  by 
any  of  the  acts  which  Lord  Hardwicke  held  to  have  barred  his  right,  even  if  he  was 
living  when  those  acts  were  performed. 
1  See  supra,  p.  3S4,  n.  i. 

26 


402        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

fine.  When,  however,  Lord  Cowper  had  successfully  established 
the  rule  that  a  bill  in  equity  was  not  a  substitute  for  a  common 
recovery,  did  it  or  not  follow  that  it  was  not  a  substitute  for  a  fine? 
That  question  appears  to  have  first  arisen  in  a  case,^  before  Lord 
Cowper's  immediate  successor,  Lord  Chancellor  Parker  (after- 
ward Lord  Macclesfield),  and  was  decided  by  him  in  the  negative, 
particular  stress  being  laid  upon  the  fact  that  a  recovery  could  be 
suffered  only  in  term  time,  while  a  fine  could  be  levied  equally 
well  in  vacation ;  and,  though  his  immediate  successor,  Lord 
King,  persistently  refused^  to  follow  his  decision,  yet  the  authority 
of  the  latter  was  fully  restored  by  Lord  King's  successors,^  and  it 
was  not  only  followed  until  the  passage  of  Lord  Eldon's  Act,  but 
furnished  the  rule  which  that  Act  applied  by  analogy  to  cases  in 
which  a  common  recovery  would  be  necessary.  Finally,  3  and  4 
Wm.  IV.  c.  74,'*  in  providing  for  cases  in  which  money  was  con- 
verted into  land  in  equity,  made  no  distinction  between  those  cases 
in  which,  if  land  had  been  purchased,  a  common  recovery  would 
have  been  necessary  to  convert  an  estate  tail  in  the  land  into  an 
estate  in  fee  simple,  and  those  in  which  a  fine  would  have  been 
sufficient. 

Whenever  the  execution  of  a  disentailing  deed  of  assignment  of 
money  converted  in  equity  into  land  now  has  the  effect  of  making 
the  person  in  whose  favor  it  is  executed  the  absolute  owner  of  the 
money,  there  is  no  doubt  that  it  also  has  the  effect  of  putting  an 
imm.ediate  end  to  the  equitable  conversion.  So  also  whenever  a 
decree  or  order  of  a  court  of  equity  for  the  payment,  to  a  person 
named,  of  money  converted  in  equity  into  land  formerly  had  the 
effect  of  making  such  person  the  absolute  owner  of  the  money, 
there  is  no  doubt  that  it  also  had  the  effect  of  putting  an  immedi- 
ate end  to  the  equitable  conversion.  I  have  hitherto  assumed  also 
that  the  mere  fact  of  any  person's  becoming  the  absolute  owner  of 

^  Short  V.  Wood,  i  P.  Wms.  470. 

2  Eyre's  case,  3  F.  Wms.  13;  Onslow's  case,  reported  by  Mr.  Cox  in  his  note  to 
Eyre's  case. 

3  In  tbe  note  just  referred  to,  published  in  1787,  Mr.  Cox  says:  "The  present  prac- 
tice conforms  to  the  Lord  Parker's  opinion."  In  Ex  parte  King,  2  Bro.  C.  C.  158, 
decided  in  the  same  year.  Lord  Thurlovv  says  (p.  160) :  "  Where  a  man  has  a  life  estate 
in  money,  remainder  to  the  heirs  of  his  body,  remainder  to  himself  in  fee,  as  he  could, 
if  the  estate  was  in  land,  obtain  the  absolute  interest  by  levying  a  fine,  the  court  would 
order  the  money  to  be  paid  to  him,  though  it  would  not  where  a  recovery  was  neces- 
sary." Finally,  the  recitals  in  Lord  Eldon's  Act  state  the  then  existing  practice  with 
great  fulness  and  in  entire  accordance  with  Lord  Parker's  decision,  supra. 

*  S.  71. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        403 

money  converted  in  equity  into  land  has  the  immediate  effect  of 
putting  an  end  to  the  equitable  conversion.  The  courts,  however, 
do  not  so  hold.  They  say  the  reason  why  the  execution  of  a  dis- 
entailing deed  or  the  obtaining  of  a  decree  or  order  of  a  court  of 
equity  has  the  effect  of  putting  an  immediate  end  to  the  equitable 
conversion  is  that,  besides  making  the  person  executing  the  deed 
or  obtaining  the  decree  or  order  the  absolute  owner  of  the  money, 
it  shows  an  intention  on  his  part  to  put  an  end  to  the  equitable 
conversion,  and  they  hold  such  an  intention  to  be  necessary. 
Therefore,  they  lay  down  for  a  rule  that  in  order  to  put  an  end  to 
the  equitable  conversion  there  must  not  only  be  an  absolute  owner- 
ship of  the  money,  but  such  owner  must  elect  ^  not  to  have  the 
money  converted  into  land. 

What  is  the  theory  upon  which  this  view  rests?  Evidently  it  is 
the  theory  that  an  equitable  conversion  is,  like  an  actual  conver- 
sion, a  thing  done,  and  that,  as  personal  property  which  is  actually 
converted  into  real  property  will  continue  to  be  real  property  until 
it  is  actually  reconverted  into  personal  property,  so  personal  prop- 
erty which  is  converted  in  equity  into  real  property  must  continue 
to  be  real  property  in  equity  until  equity  reconverts  it  into  per- 
sonal property.  Accordingly,  the  courts  of  equity  constantly  say 
that  money  which  is  converted  in  equity  into  land  is  impressed  by 
equity  with  the  quality  of  land,  and  they  constahtly  assume  that  the 
impression  so  made  must  remain  until  it  is  removed  by  the  same 
authority  by  which  it  was  made.  This  theory,  however,  proceeds 
upon  a  false  analogy,  i.  An  equitable  conversion  is  not  a  thing 
done,  but  is  a  mere  consequence  deduced  by  equity  from  a  thing 
agreed  or  directed  to  be  done,  and  therefore  it  will  continue  to 
exist  only  so  long  as  the  agreement  or  direction  which  brought  it 
into  existence  remains  in  force.  2.  The  theory  erroneously  as- 
sumes that  a  covenant  or  direction  to  lay  out  money  in  the  pur- 
chase of  land,  and  to  settle  the  land,  converts  the  money  in  equity 
directly  into  land,  whereas  it  merely  creates  one  or  more  rights  to 
have  the  covenant  or  direction  performed,  and  equity  causes  such 
a  right  to  devolve,  on  the  death  of  its  owner,  as  the  land  would 

1  lingen  v.  Souroy,  i  P.  Wms.  172;  10  Mod.  39;  Crabtree  v.  Bramble,  3  Atk.  680; 
Bradish  v.  Gee,  Amb.  229;  Biddulph  v.  Biddulph,  12  Ves.  161  ;  Kirkman  v.  Miles,  13 
Ves.  338;  Davies  v.  Ashford,  15  Sim.  42;  Harcourt  v.  Seymour,  2  Sim.  N.  s.  12; 
Dixon  V.  Gayfere,  17  Beav.  433;  Griesbach  v  Freemantle,  17  Beav.  314;  Brown  v. 
Brown,  33  Beav.  399;  Sisson  v.  Giles,  3  DeG.,  J.,  &  S.  614,  9  Jur.  N.  s.  512,  951  ; 
Meredith  v.  Vick,  23  Beav.  559;  Mutlow  v.  Bigg,  i  Ch.  D.  3S5;  Meek  v.  Devenish, 
6  Ch.  D.  566;  In  re,  Gordon,  6  Ch.  D.  531. 


404        A    BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

have  devolved  if  the  conversion  had  been  actually  made ;  and 
therefore  it  is  not  possible  that  there  should  be  any  equitable  con- 
version after  there  has  ceased  to  be  any  such  right,  and  it  is  not 
possible  that  any  such  right  should  continue  to  exist  after  the  cov- 
enant which  created  it  has  ceased  to  exist,  or  after  the  direction 
which  created  it  has  ceased  to  be  in  force.  3.  The  courts  have 
acted  inconsistently  in  holding  that  an  equitable  conversion  of 
money  into  land  will  continue  to  exist,  notwithstanding  that  a 
single  person  has  become  the  absolute  owner  of  the  money,  and 
yet  that  an  election  by  such  owner  not  to  have  the  money  actually 
converted  into  land  will  instantly  put  an  end  to  the  equitable  con- 
version, for  that  is  to  hold  that  the  continuance  of  an  equitable 
conversion  ultimately  depends  upon  the  will  of  the  person  in  whose 
favor  alone  it  exists,  and  yet  it  is  as  clear  as  anything  in  law  can 
be  that  the  mere  will  of  the  owner  of  property  as  to  what  shall  or 
shall  not  be  done  with  that  property  has  no  legal  significance,  and 
cannot  properly  be  a  subject  of  legal  inquiry,  unless  such  v/ill  be 
duly  declared  by  him  in  his  last  will  and  testament. 

Moreover,  the  view  which  I  have  been  controverting  is  as  in- 
convenient in  practice  as  it  is  wrong  in  principle ;  for  it  often  hap- 
pens that  an  agreement  or  direction  to  lay  out  money  in  the 
purchase  of  land,  and  to  settle  the  land,  is  never  in  fact  performed, 
not  because  of  any  unwillingness  or  refusal  to  perform  it,  but 
because  no  one  desires  or  cares  to  have  it  performed,  and  accord- 
ingly the  money  not  being  laid  out  in  the  purchase  of  land  is 
invested  in  some  other  mode,  and  remains  so  invested,  and  no 
question  ever  arises  in  regard  to  the  conversion  covenanted  or  di- 
rected to  be  made,  unless  some  person,  perhaps  fifty  years  after  the 
covenant  was  made  or  the  direction  given,  finds  it  for  his  interest  to 
claim  that  the  money  is  still  converted  in  equity  into  land,  and,  if 
it  so  happens,  the  question  is  likely  to  depend,  according  to  the 
doctrine  in  question,  upon  whether  there  has  been  an  election  not 
to  have  the  conversion  made,  and  that  again  is  likely  to  depend 
upon  what  is  the  true  inference  to  be  drawn  from  a  long  course  of 
conduct,  the  person  whose  conduct  thus  becomes  the  subject  of 
inquiry,  if  still  alive  having  probably  forgotten,  if  he  ever  knew, 
that  such  a  covenant  was  ever  made  or  such  a  direction  ever  given  ; 
and  such  an  inquiry  is  likely  to  be  not  only  very  vexatious  and 
troublesome  as  well  as  very  expensive,  but  also  very  fruitless,  so 
far  as  regards  the  ascertainment  of  truth.  Indeed,  those  who  have 
the  misfortune  to  be  involved  in  a  litigation  upon  such  a  question 


*  A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.         4^5 

will  generally  find  it  for  their  mutual  interest,  whatever  may  be 
the  value  of  the  property  involved,  to  decide  the  question  by 
drawing  lots. 

There  is,  however,  one  class  of  cases  in  which  it  is  agreed  by  all 
that  there  will  cease  to  be  any  equitable  conversion,  though  the 
actual  conversion  covenanted  or  directed  to  be  made  has  not  been 
made,  and  though  there  has  been  no  election  not  to  have  it  made, 
namely,  where  the  absolute  owner  of  money  which  has  been  con- 
verted in  equity  into  land  has  the  money  in  his  own  hands,  —  in 
which  case  the  money  is  said  to  be  at  Jionic ;  ^  and  it  seems  not  to 
be  material  whether  he  has  possession  of  the  money  in  his  own 
right  or  as  executor  only.  Moreover,  it  seems  not  to  be  indispen- 
sably necessary  that  he  should  be  entitled  to  have  the  land  con- 
veyed to  him  in  fee  simple  absolute,  for,  though  he  be  entitled 
only  to  have  it  conveyed  to  him  for  his  life,  with  remainder  to  him 
in  fee  simple  absolute,  and  though  these  limitations  in  his  favor 
are  liable  to  open  and  let  in  a  limitation  in  tail  to  any  son  of  his 
who  shall  hereafter  be  born,  for,  if  he  get  the  money  into  his  own 
hands,  even  as  executor,  it  seems  that  the  equitable  conversion  of 
the  money  into  land  will  be  suspended  until  he  shall  have  a  son, 
and,  if  he  die  without  ever  having  had  a  son,  the  equitable  conver- 
sion will  never  revive,  and  the  money  will  devolve,  at  his  death,  as 
money.  Both  these  points  are  illustrated  by  the  great  case  of 
Pultney  v.  Darlington,^  in  which  Sir  John  Scott,  Attorney-General, 
Mr.  Charles  Fearne,  and  Mr.  W.  Dundas  struggled  valiantly,  but 
unsuccessfully,  to  reverse  Lord  Thurlow.  In  that  case  Henry  Guy, 
who  died  in  1710,  directed  his  executors  to  lay  out  the  residue  of 
his  personal  estate  in  the  purchase  of  land,  and  to  settle  the  land 
on  William  Pultney,  afterwards  Earl  of  Bath,  for  life,  remainder  to 
his  first  and  other  sons  successively  in  tail  male,  remainder  to  Harry 
Pultney,  brother  of  William,  and  his  first  and  other  sons  in  like 
manner,  remainder  to  Daniel  Pultney,  a  cousin  of  William  and 
Harry,  and  his  first  and  other  sons  in  like  manner,  remainder  to 
the  father  of  William  and  Harry  in  fee.  The  father  died  in  1715, 
whereupon  his  right  under  the  will  to  have  the  land  conveyed  to 
him  in  remainder  in  fee  passed  to  William  Pultney,  his  eldest  son 
and  heir.^     In   1731   Daniel  Pultney  died  without  issue  male.     In 

1  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  211,  224;  //;  re  Gordon,  6  Ch.  D.  531, 
535,  537, /^r  Sir  G.  Jessell,  M.  R. 

2  I  Bro.  C.  C.  223,  7  Bro.  P.  C,  Tomlin's  ed.  530. 

3  It  has  always  been  assumed  that  this  remainder  in  fee  descended,  on  the  deaths 


406        A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION. 

1764  the  Earl  of  Bath  died  without  issue  male,  whereupon  his 
right  to  said  remainder  in  fee  passed  to  said  Harry  Pultney,  his 
brother  and  heir.  On  the  death  of  the  Earl  of  Bath,  therefore, 
Harry  Pultney  was  entitled,  upon  the  facts  which  have  been  stated, 
to  have  the  residue  of  Henry  Guy's  personal  estate  laid  out  in  the 
purchase  of  land,  and  to  have  the  land  conveyed  to  him  for  life, 
remainder  to  him  in  fee.  He  was  not,  however,  even  to  the  last 
moment  of  his  life,  entitled  to  have  the  money  paid  over  to  him, 
for  if  land  had  been  purchased  and  settled,  the  two  limitations  in 
his  favor,  as  above,  would  have  been  liable  to  open  and  let  in  limi- 
tations in  favor  of  his  sons ;  for,  though  he  was  about  eighty-six 
years  old  and  a  bachelor,  yet  in  legal  contemplation  it  was  pos- 
sible that  he  should  marry  and  have  sons;  and,  though  in  fact  he 
did  neither,  yet,  upon  the  facts  thus  far  stated,  the  equitable  con- 
version of  the  money  into  land  remained  in  force  till  his  death,  and 
on  his  death  his  rights  under  the  will  of  Henry  Guy  devolved  as 
land.  There  was,  however,  another  material  fact,  for  the  Earl  of 
Bath  was  executor  of  Henry  Guy,  and  Harry  Pultney  was  the  ex- 
ecutor of  the  Earl  of  Bath,  and  by  consequence  executor  of  Henry 
Guy,  and  therefore,  on  the  death  of  the  Earl  of  Bath,  the  money 
was  at  home,  and  so  remained  till  the  death  of  Harry  Pultney,  when 
it  devolved  as  money;  and  yet  there  had  been  no  election  not  to 
have  an  actual  conversion  made,  and  could  have  been  none,  Harry 
Pultney  not  being  the  absolute  owner  of  the  property.^ 

How  may  an  equitable  conversion  of  land  into  money,  not  caused 
by  a  bilateral  contract  for  the  purchase  and  sale  of  land,  be  brought 
to  an  end  without  an  actual  conversion?  Such  an  equitable  con- 
version is  generally  caused  by  a  direction  in  a  will  to  sell  land  and 
divide  the  proceeds  of  the  sale  among  persons  designated  by  the 
testator;  and  it  is  plain  that  in  such  a  case  there  will  seldom  be 
any  unnecessary  delay  in  making  a  sale,  as  the  interest  of  each  of 
the  persons  designated  by  the  testator  will  be  likely  to  be  promoted 
by  a  sale.  If,  however,  in  any  given  case  all  the  persons  desig- 
nated by  the  testator  shall  be  of  one  mind  in  preferring  the  land  to 

of  its  respective  owners,  to  their  respective  heirs,  as  stated  in  the  text.  On  principle, 
however,  it  seems  that  the  equitable  conversion  caused  by  the  will  of  Henry  Guy  did 
not  extend  to  the  ultimate  interest  limited  to  the  father  of  William  and  Harry  Pultney, 
and  therefore  that  ultimate  interest  ought  to  have  devolved  as  money.  See  supra, 
PP-  397-398. 

i  The  decision  of  the  House  of  Lords  was  made  in  1796,  eightv-six  years  after  the 
death  of  Henry  Guy,  when  the  residue  of  his  personal  estate  was  still  personal  estate 
in  fact  and  had  not  lost  its  identity. 


A   BRIEF  SURVEY  OF  EQUITY  JURISDICTION.        40/ 

the  proceeds  of  its  sale,  they  may,  if  of  full  age  and  sui  juris,  re- 
quire the  land  to  be  conveyed  to  them,  and  thus  put  an  end  to  the 
equitable  conversion.  So  if,  in  any  given  case,  the  number  of  per- 
sons entitled  to  share  in  the  proceeds  of  a  sale  of  the  land  shall,  by 
death  or  otherwise,  be  reduced  to  one  before  any  sale  of  the  land 
is  made,  a  consequence  will  be  that  that  one  will  be,  in  equity,  the 
sole  owner  of  the  land  in  fee  simple,  and  hence  if  the  equitable  con- 
version still  exists  it  will  be  because  he  has  not  elected  to  take  the 
land  instead  of  the  proceeds  of  its  sale,  and  the  courts,  as  we  have 
seen,  say  it  does  still  exist,  notwithstanding  the  oddity  of  saying 
that  land  of  which  one  person  is  the  sole  and  absolute  owner  must 
be  treated  as  converted  in  equity  into  money  until  such  owner  has 
elected  not  to  have  it  actually  converted  into  money  pursuant  to 
the  direction  of  a  deceased  person  whose  direction  has  ceased  to 
have  any  force  whatever. 

Here  ends  all  that  I  propose  to  trouble  the  reader  with  on  the 
subject  of  the  indirect  conversion  of  money  into  land  and  land  into 
money. 


INDEX. 


A. 

ACCOUNT   STATED, 

as    defense  in    bills   for  an   account  and   in    bills   of   equitable    assump- 
sit, 102-103. 
distinguished  from  compromise  of  claims,  1 17-1  iS,  1 19. 
implied  agreement  as  to  accuracy  of,  118-119,  120-121. 
when  impeached  for  fraud,  120. 
when  impeached  for  errors  and  omissions,  120. 
ACCOUNTS   AND    ACCOUNTING, 

incidental  relief  in  connection  with  injunctions,  35-36. 
doctrine  of  relation  as  basis  of,  in  equity,  44. 
mutual  accounting,  resulting  in  balance  for  defendant,  44. 
nature  and  requisites  of  obligation  to  account,  74-82. 

true  bills  for  an  account  founded  upon  obligation  to  account,  74. 

obligation  to  account  not  founded  upon  contract,  75. 

defendant  must  liave  received  property  belonging  to -another,  75. 

guardians,  bailiffs,  receivers,  75-76. 
plaintiff  must  be  owner  of  property  to  be  accounted  for,  76. 

account  distinguished  from  debt,  77. 
defendant  must  be  more  than  mere  bailee,  "]"]. 

accountability  of  receiver  of  money,  7^-jg. 
control  of  property  essential  to  obligation  to  account,  79. 

extent  of  possession  necessary,  79. 
fiduciary  relation  between  plaintiff  and  defendant,  80. 
money  delivered  by  A  to  B  for  C,  81. 
deputy  of  bailiff  accountable  only  to  bailiff.  Si. 
enforcement  of  obligation  by  or  against  representatives  of  original 

parties,  81-S2. 
privity  between  parties,  how  created,  82. 
remedies  for  breach  of  obligation  to  account,  82-98. 

inadequacy  of  action  on  the  case  or  on  promise  to  account,  82-S3. 

the  comniiin-law  action  of  account,  83-85. 

debt  and  indebitatus  assuvipsit  not  applicable,  85-8S. 

though  obligation  to  account  may  be  converted  into  a  debt,  S5-86. 
and  balance  of  account  becomes  a  debt.  86. 

confusion  of   indebitatus  assumpsit  with   action  of  account,   au- 
thorities. 86-88. 
false  assumptions  involved,  ^Z. 
reason  for  failure  of  action  of  account,  89. 
bill  in  equity  substituted  for  action  of  account,  89-98. 
procedure  upon  a  bill  for  an  account,  90. 
bill  filed  by  obligor  for  surplusage,  90. 
defense  that  obligation  to  account  has  become  a  debt,  91. 
bills  against  guardians  and  bailiffs.  91. 

less  common  in  the  United  States  than  in  England,  91. 
bills  against  factors,  auctioneers,  brokers,  publishers,  etc.,  92. 
liability  transformed  into  debt  at  option  of  obligor,  92-93. 
stockbroker  employed  to  buy  stocks,  liability  of,  93^ 


4IO  INDEX. 

ACCOUNTS    AND   ACCOUNTING— C^«//;n/^^. 
publisher  of  books,  liability  to  author,  93. 
manufacturer,  liability  to  patentee,  93;-94- 
insurance-broker,  liability  to  underwriter  and  to  assured,  94. 
banker,  liability  to  customers,  94. 
cotenants,  liability  to  one  another,  94-95. 

liability  upon  sale  by  one  of  share  of  another,  95-96. 
copartners,  not  accountable  to  one  another,  96-97. 
commercial  traveller,  liability  to  employers,  97. 
~L.trustee,  liability  to  cestui  que  trusl,  97. 

executors  and  administrators,  nature  of  obligation  to  legatees  and 

next  of  kin,  97-98. 
attorney  at  law,  liability  to  client  as  to  collections,  98. 
sheriff,  liability  to  judgment  creditor,  98. 
stake-holder,  nature  of  liability,  98. 
distinction  between  bills  for  an  account  and  bills  of  equitable  assumpsit,  99. 
degree   of   complication  necessary  to  give  equity  jurisdiction  for  bills  of 
equitable  assumpsit,  108-109. 
See  Bills  of   Equitable  Assumpsit;   Creditors'  Bills;   Cross- 
claims  OR  Set-off. 
ACTIONS.     See  Remedies. 

ACTIONS    IN    PERSONAM,    20,  27.     See  Remedies. 
ACTIONS    IN    REM,  2G-22,  27-28.     6"^^  Remedies. 
ADMINISTRATION    OF    DECEDENTS'    ESTATE, 
under  Roman  law,  127-128. 
by  ecclesiastical  authority,  128-129. 
in  equity,  through  creditors'  bills,  154. 
what  constitutes  administration  of  personal  estate,  154-155. 
exclusive  jurisdiction  over,  exercised  by  equity,  156. 
form  of  procedure  in  equity,  1 57-191. 
origin  of  duty  to  pay  legacies,  225-226. 

duty  imposed  on  administrators  by  statute  of  distributions,  226. 
relation  between  personal  representative  and  legatees  and  next  of  kin,  230. 
6"^,?  Executors  and  Administrators;   Creditors'  Bills. 
ADMINISTRATORS.    .SV^  Executors  and  Administrators. 

ADMIRALTY    LAW, 

adoption  of  Roman  hypotheca  in,  195-196,  223. 

ADVOVVSONS,  233. 

AEQUITAS    AGIT    IN    PERSONAM,  6. 

AFFIRMATIVE    DUTIES, 

difficulty  of  proving  intended  breach  of,  43. 

See  Rights  ;  Negative  and  Affirmative  Duties. 

ANNUITIES, 

in  relation  to  annual  rents,  210. 

ANNUITY,   WRIT   OF, 

for  recovery  of  rent,  201-202. 

ARTISTS, 

rights  in  artistic  creations,  233. 

ASSIGNMENTS    FOR   THE    BENEFIT   OF   CREDITORS, 
as  effecting  equitable  conversion,  369-371. 

ASSIZE,    WRIT    OF, 

for  recovery  of  rent,  201. 

ATTORNEY    AND    CLIENT, 

obligation  of  attorney  to  client  as  to  collections,  98. 

ATTORNMENT, 

to  assignee  of  rent,  204. 


INDEX.  411 


AUCTIONEERS, 

liability  to  account  in  equity,  9: 

AUTHORS, 

rights  in  literary  creations,  233. 


BAIT.TFFS, 

obligation  of,  to  account,  75. 
account  of,  in  equity,  91. 

BAILMENT, 

distinguished  from  account,  Ti . 

BANKERS, 

liabilitv  of,  to  customers,  94. 

implied  set-off  of  cross-claims  between  customers  and  bankers,  115. 

BANKRUPTCY, 

sale   of    real    estate    before   and    after  death  of  bankrupt,   devolution   of 
surplus,  266. 

BILLS   OF   EQUITABLE   ASSUMPSIT.      See   Equitable   Assumpsit, 

Bills  of. 
BILLS    OF    PEACE,   35. 

BONA    FIDE    PURCHASER    FOR   VALUE, 

,   limitation  of  equitable  obligation  as  to,  6. 

'subject  to  legal  real  obligation,  2S3. 
BOND    CREDITORS, 

recovery  of,  out  of  real  estate  of  deceased  debtor,  184-186. 


C. 

CANON-LAW   AND    ECCLESIASTICAL   COURTS, 

as  source  of  equitable  procedure,  26. 

as  origin  of  rights  against  executors  and  administrators,  gS. 

jurisdiction  of,  over  estates  of  deceased  persons,  128-129. 

extent  of  jurisdiction  with  respect  to  executor's  inventory,  139. 

loss  of  jurisdiction  over  rights  of  legatees  and  next  of  kin,  155-156. 

predial  tithes,  creation  and  enforcement  of,  by,  216-217. 
duty  to  set  apart,  how  imposed,  226. 
CH.ARGE    UPON    LAND.    See  Equitable  Conversion. 

CHATTELS    PERSONAL, 

contracts  for,  when  subject  of  specific  performance,  49. 

bill  in  equity  to  recover  possession  of,  50. 
See  Personal  Property. 
CLASSIFICATION, 

of  rights,  T-iS,  219-239. 

of  remedies,  19-39. 

of  common-law  remedies,  27. 

of  wrong.s,  239-250. 

of  rents,  207. 

COMMERCIAL   TRAVELLERS, 
relation  of,  to  employers,  97. 

COMMON    CARRIERS, 

duty  towards  employers,  226. 
COMMON-LAW     REMEDIES, 

classification  of,  27. 


412  INDEX. 

COMPENSATION, 

civil  law  doctrine  of,  in  connection  with  cross-claims,  111-112. 

COMPROMISE, 

distinguished  from  account  stated,  117-11S,  119. 

of  cross-claims,  impeachment  for  fraud,  120.  ' 

CONCURRENT   JURISDICTION, 

meaning  of,  as  applied  to  equity,  23. 

CONDITIONS     PRECEDENT,    IMPLIED.    See    Implied    Conditions 

Precedent. 
CONSIDERATION, 

in  equity  and  at  law,  52. 

sufficiency  of,  in  connection  with  specific  performance,  52. 
\    CONSTRUCTIVE   TRUSTS, 
''  created  by  equity  alone,  13. 

origin  and  creation,  255-256. 
as  means  of  enforcing  direct  equitable  conversion,  306. 

CONTRACTS, 

interference  with,  constituting  tort.  3. 
,   creating  at  the  same  time  legal  and  equitable  obligations,  16-17. 
*^^Tor  the  benefit  of  third  persons,  enforcement  in  equity,  17. 
".  to  convey  land,  devolution  of  equitable  right  on  death  of  obligee,  17. 
of  railroads  to  construct  works  to  be  specifically  performed,  47,  n. 
informal,  to  enter  into  formal  contract,  48,  n. 
negative  and  affirmative,  analogous  to  affirmative  and  negative  torts,  67. 

breaches  of,  67,  n.,  241. 
distinction  between,  and  torts,  241. 
6'fcV  Specific  Performance;  Equitable  Conversion. 
CONVERSION.     See   Equitable   Conversion. 

CO-OWNERSHIP, 

liability  of  co-tenants  to  one  another,  94-95. 
liability  of  co-owner  upon  sale  of  property,  95-96. 
effect  of  tortious  sale  of  property  by  co-owner,  96. 
forms  of,  221. 

sale  of  land  subject  to,  disposition  of  proceeds,  268. 

agreement  of  co-owners  to  join  in  sale,  not  a  cause  of  equitable  conver- 
sion, 363-364. 

CO-PARTNERS, 

not  mutually  accountable  through  bill  in  equity,  96-97. 

COPYRIGHTS.    See  Patents  and  Copyrights. 
CORPORATIONS, 

duties  toward  stockholders,  227. 
COVENANT, 

recovery  of  rent  by  suit  upon,  202. 
CREDITORS, 

ascertainment  of,  in  administration  of  decedent's  estate  by  equity,  159. 

of  deceased  person,  priority  gained  by  bringing  suit,  166. 
See    Creditors'    Bills  ;    Judgment    Creditors  ;    Secured   Cred- 
itors. 

CREDITORS'    BILLS, 

distinguished  from  "judgment  creditors'  bills,"  125. 
foundation  of  jurisdiction  in  death  of  r'ebtor,  125-126. 

effect  of  debtor's  death  upon  creditor's  remedy,  126. 

Roman  doctrine  of  artificial  legal  personality,  127-128. 

control  of  decedent's  estate  by  ecclesiastical  authorities,  128-129. 
legal  remedy  of  creditor  against  personal  property  of  decedent,  1 29-1 31.     ' 
nature  and  form  of  equitable  relief,  131-132. 


INDEX.  4  i  3 

CREDITORS'    BI  LLS  —  Continued. 

inadequacy  of  legal  remedy  as  against  defense  of  want  of  assets,  132-142. 
accounting  by  executor  at  law,  difficulty  of,  132-133. 
account  of  executor  as  affirmative  defense  rather  tlian  performance 
of  obligation,  133-137. 
accounting  before  jury,  135-137. 
burden  of  proving  assets  or  lack  of  assets,  137-139. 
justification  of  equity  jurisdiction  over,  in  general,  139-140. 
based  on  principle  of  relieving  against  penalties,  140-142. 
where  plaintiff  at  law  is  not  met  by  defense  of  want  of  assets,  142-143. 
connected  with  immediate  rather  than  with  final  relief,  143-144. 
date  of  establishment  of,  144. 

to  enforce  payment  out  of  deceased  debtor's  land,  144-153. 
common-law  rights,  144-148. 

influence  of  feudalism  upon,  144. 

of  judgment  creditors,  against  crops,  144. 

by  way  of  extent.  145. 
of  specialty  creditors  against  heir  when  bound  to  extent  of  inher- 
itance, 145-146. 
judgments  against  heirs,  146-148. 
execution  by  extent,  14S. 
justification  of  equity  jurisdiction  over  bills  against  heir,  14S-150. 
procedure,  150. 

judgment    creditors,    common-law    remedies    of,    against    decedent's 
land,  150-151. 
right  to  bill  against  owner  of  decedent's  land,  151-152. 
prevention  of  multiplicity  of  suits  as  basis  of  equity  jurisdiction,  152- 

consequ'^nces  of  the  establishment  of  equity  jurisdiction  over,  154-157. 
administration  of  decedent's  personalty  in  equity,  154. 
bills  by  legatees  and  next  of  kin,  155-157- 
procedure  of  equity  in  administering  decedents'  estates,  157-191. 
on  bill  of  residuary  legatee,  158-163. 
on  bill  of  next  of  kin,  163-164.- 
on  bill  of  pecuniary  legatee,  164-166,  170. 
on  bill  of  creditor,  166,  170. 

priority  of  creditor  recovering  judgment  or  decree,  166-167. 

confusion  of  judgments  against  executor  and  against  testa- 
tor, 166-167. 
on  bill  filed  by  creditor  for  benefit  of  all  creditors,  169-171. 

superseding  bill  filed  for  exclusive  benefit  of  suing  creditor,  171. 
injunction  against  creditor's  action  at  law,  172-177. 

granted  in  administration  suit,  upon  motion  of  executor,   176-177. 
upon  motion  of  plaintiff  creditor,  177. 
suits  at  law  or  in  equity  stayed  upon  motion  and  without  injunction, 

177   1 78. 
preference  by  executor,  not  prevented  by  equity,  178-179. 
whether  bill  may  be  filed  by  executor,  179-180. 

whether  bill  may  be  filed  on  behalf  of  all  persons  interested.  1S0-184. 
relation  of  plaintiff  in  equity  to  those  on  whose  behalf  he  sues, 
1S1-184. 
bond  creditors,  recovery  out  of  decedent's  realty,  184-1 86. 
executor  to  be  made  a  defendant,  185. 
on  behalf  of  all  creditors,  185. 
procedure,  186. 
secured  creditors,  1S6-1S7. 

procedure  against  living  debtors,  1S6-1S7. 
procedure  against  estate  of  deceased  debtor,  1 87-1 88. 
bankruptcy  rule  applied  in  case  of  debtor  dying  insolvent,   187- 
18S. 


414  INDEX. 

CREDITOR'S    BILLS  —  Continued. 

incidental  objects  accomplished  by  equity,  1 88-191. 
promotion  of  equality  among  creditors,  188-189. 
equitable  assets,  188-189. 
-    application  of  decedent's  real  estate  to  all  debts,  through  subro- 
gation, 189-190. 
fulfilment  of  testator's  intention  as  to  legacies,  190-191. 
CROPS, 

common-law  rights  of  judgment  creditors  in,  144. 
severance  of,  as  conversion  into  personalty,  300. 

CROSS-CLAIMS    OR   SET-OFF, 

of  defendant,  to  bill  for  an  account,  90. 

in  connection  with  bills  of  equitable  assumpsit,  loo-lor,  102,  104,  107-108. 

effect  on  complication  of  issue,  i  lo-i  1 1 ,  114. 
civil-law  doctrine  of  compensation  in  connection  with,  111-112. 
extinguishment  by  mutual  agreement  of  parties,  112-113. 

distinguished  from  extinguisliment  by  operation  of  law,  1 13-114. 
implied  agreement  of  parties  to  set  oflF,  1 14-1 15. 

in  relations  of  banker  and  customer,  1 15. 
effect  of  agreement  to  set  off,  dependent  upon  actual  amount  of  claims, 

1 16-1 17. 
compromise  of  claim  distinguished  from  account  stated,  11 7-1 18,  119. 
account  stated,  implied  agreement  as  to  absence  of  mistake  in,  118-119, 

1 20-1 21. 
compromise  or  account  stated,  when  impeached  for  fraud,  120. 
See  Equitable  Assumpsit,  Bills  of. 


D. 

DAMAGES, 

for  interference  with  possession  of  movable  property,  21. 

for  interference  with  possession  of  immovable  property,  21,  n. 

for  past  tort,  in  form  of  accounting,  35-36. 

for  permanent  tort,  38. 

in  connection  with  specific  performance,  assessment  by  equity,  43-44. 
assessment  by  jury,  45. 
DEBT, 

action  of,  technically  an  action  i?i  rem,  27,  n. 

distinguished  from  account,  77. 

action  of,  not  applicablj  to  enforcement  of  obligation  to  account,  85. 

obligation  to  account  transformed  into,  effect  of,  91. 

as  foundation  of  bill  of  equitable  assumpsit,  loo. 

degrees  of.  140-142. 

recovery  of  rent  by  action  of,  202. 

charged  upon  land,  286,  366-369. 
DETINUE,  27-28. 
DEVASTAVIT,  131. 

DEVISES, 

of  property  equitably  converted,  385,  3S6-388. 
DIGNITIES,  234. 

DISTRESS, 

incident  of  feudal  service,  200. 
for  recovery  of  rent,  202. 

sufificiency  of  remedy  of,  2X1. 
development  of,  in  England.  205. 
regarded  with  disfavor  in  the  United  States,  205. 
absence  of,  whether  ground  of  equity  jurisdiction,  213-214. 


INDEX.  4 1  5 

DISTRIBUTIONS,  STATUTE  OF.    See  Statute  of  Distributions. 

DOMESTIC    DUTIES, 

origin  and  nature  of,  227. 

DOWER, 

duty  of  heir  to  assign,  226. 

DUTIES, 

distinguished  from  obligations,  224. 
See  Rights. 

E. 

EASEMENTS, 

creation  of,  222. 

origin  in  Roman  servitudes,  222. 

nature  and  origin  of,  244. 

obstruction  of,  247-248. 

in  gross,  relation  to  Roman  servitudes,  224. 
See  Rights. 
ECCLESIASTICAL   COURTS.     See  Canon   Law   and   Ecclesiastical 

Courts. 
ELDON.    LORD, 

argument  in  Ackroyd  v.  Smith.son,  335-342. 

E.MINENT    DOMAIN,  235-236. 

ENTRY,    RIGHT    OF, 

as  remedy  for  recovery  of  rent,  203-204. 
extension  in  the  United  States,  206. 
EQUALITY, 

among  creditors  of  decedent,  how  obtained  by  equity,  188-189. 

EQUITABLE    ASSETS, 

used  to  produce  equality  among  creditors,  1S8-1S9. 

EQUITABLE    ASSUMPSIT,  BILLS    OF, 

distinguished  from  bills  for  an  account,  99-107. 

founded  upon  debt  rather  than  upon  obligation  to  account,  100. 
payment  of  debt  the  primary  relief  sought  by,  100. 
bill  must  show  amount  of  debt,  100. 
cross-claims,  loo-ioi. 
jurisdiction  founded  upon  complication  of  circumstances  (see  below) 

loi. 
payments  on  plaintiff's  account,  how  pleaded,  102. 
nature  of  defense  of  account  stated,  102-103. 
function  of  accounting  before  master,  103-104. 
interlocutory  nature  of  decree  for  an  accounting,  104-105. 
injunction  against  suit  at  law,  common  incident  of  bill  of  equitable 
assumpsit,  105-107. 
combined  with  bill  of  equitable  assumpsit,  107. 
degree  of  complication  necessary  for  equity  jurisdiction,  loi,  10S-109. 
effect  of  cross-claims  on  complication  of  issue,  iio-i  1 1,  114. 

compensation,  civil  law  doctrine  of,  in  connection  with  cross-claims, 

1 11-112. 
extinguishment  of  cross-claims  by  mutual  agreement,  112-113. 
distinction  between  extinguishment  by  operation  of  law  and  by  agree- 
ment of  parties,  1 13-1 14. 
implied  agreement  to  set  off  cross-claims,  T14-115. 

in  case  of  banker  and  customer.  11 5-1 16. 
effect  of  agreement  to  set  off  dependent  on  actual  amount  of  claims, 
116-117. 


4l6  INDEX. 

EQUITABLE    ASSUMPSIT,    BILLS    OV  —  Continued. 

distinction  between  compromise  of  claims  and  account  stated,  1 17-120. 
fraud,  effect  of,  in  overthrowing  compromise  or  account  stated,  120. 
mistai<e,  effect  of,  in  impeacliing  account  stated,  120-121. 

when  account  stated  is  in  pursuance  of  an  obligation  to  account, 

I2t-I22. 

distinction  between  accounting  pursuant  to  obligation  and  statement 
of  cross-demands,  122-124 
perversion  of  indebitatus  assumpsit,  123. 
defense  of  account  stated  not  similarly  extended,  123-124. 

EQUITABLE    C9NVERSION, 
actual  conversion, 

derivation  and  definition  of  term,  260-261. 
direct  and  indirect,  261. 

indirect,  originating  in  contract,  bilateral  or  unilateral,  261-262. 
by  sale,  without  previous  contract,  261-262. 
testamentary  provision  for,  form  of,  262-263. 
not  effective  till  testator's  death,  262. 

devolution   of   both    realty   and    personalty   on   testator's   death, 
262-263. 
effect  in  general  of  actual  exchange  of  land  and  money,  263-264. 
re-conversion  by  equity  after  actual  exchange,  264. 
illustrative  cases,  264-268. 

sale  of  mortgaged  estate  before  and  after  death  of  mortgagor, 

266. 
sale  of  bankrupt's  real-estate  before  and  after  death,  266. 
sale  of  settled  estate  subject  to  mortgage,  disposition  of  sur- 
plus, 266,  267. 
seizure  by  the  state  of  settled  estate,  disposition  of  proceeds, 

266,  267. 
sale  of  settled  estate  under  power,  disposition  of   proceeds, 

266,  267. 
sale  of  land  subject  to  co-ownership,  disposition  of  proceeds, 
268. 
death  of  vendor  of  l^nd  pending  contract,  enforcement  of  contract  and 
disposition  of  purchase  price,  268-269,  314. 
unwarranted  extension  of  principle  to  case  of  options  for  the  pur- 
chase of  land  exercised  after  death  of  owner,  269-273. 
,  supported  by  misapplication  of  doctrine  of  relation,  272-273. 

^"  differences  between  money  and  land  in  respect  to  devolution,  as  affect- 

ing results  of  exchange,  273-278. 
heir  and  next  of  kin,  mode  of  succession  to  property  of  intestate, 

273-274. 
devolution  of  residuary  personalty  directed  by  testator  to  be  in- 
vested in  land,  authorities,  274-276. 
effect  of  statute,  276-27S. 
testamentary  direction,  power  or  trust  for  sale  of  land,  278-2S1. 

disposition  of   proceeds    in    absence   of   testamentary   provision, 

278-279. 
nugatory  nature  of,  without  disposition  of  proceeds,  279-281. 
when  valid  and  effective,  281. 
distinction  between  disposition  of  proceeds  on  sale  and  provision 

for  satisfying  lien  or  charge,  282. 
bequest  of  proceeds  making  legatee  a  co-owner,  283. 
form  of  gift,  28 3-285. 

result  of  failure  of  gift,  284. 
imposition  of  lien  or  charge,  making  legatee  a  creditor,  283. 
creating  equitable  real  obligation,  283. 
form  of  gift,  283-2S5. 

result  of  failure  of  gift,  285. 

gift  of  sum  charged  on  land  to  executor  as  such,  2S5-2S6. 


INDEX. 


417 


EQUITABLE    CONVERSION  -  Continued. 

char<jinjj  debts  and  lei^acies,  286. 

authorities  on  lapsing'of  gifts  charged  upon  land,  28r>--no 
hen  or  charge  combined  with  gift  of  residue,  followed  by  lapse  of 
gift  charged,  290-291. 
authorities,  291-292. 

further  distinctions  between  charge  and  disposition  of  proceeds  of 
sale,  292. 

words  necessary  to  constitute  gift  of  proceeds   or  gift    charged 
upon  land,  293.  ° 

dual  nature  of  testamentary  gift  of  proceeds  of  land,  ''93 
connection  of  words  directing  sale  with  words  disposing'  of 

proceeds,  293-294  ^ 

result  of  lapse  of  testamentary  gift  of   proceeds  of  sale    or 
moneys  charged  upon  land,  294-295. 
how  avoidable,  295-296. 
authorities,  296-300. 
direct,  by  severance,  3^0. 

not  connected  with  equitable  conversion,  300. 
of  annual  crops,  300. 

rents,  following  analogy  of  crops,  300-301. 
of  timber,  301. 

ownership  and  right  to  cut  vested  in  owner  of  inheritance  301 
mtervention  of  equity  for  benefit  of  all  concerned,  301-30-' 
wrongful  severance  by  life-tenant,  302. 
in  mining,  302. 
justification  of  title.  302-303. 

legal  principles  preliminary  to  discussion  of  equitable  conversion    ^ox 
equitable  conversion,  304-407. 

misapplication  of  doctrine  of,  in  connection  with  specific  performance 

of  contracts  after  destruction  of  subject  matter,  63-6; 
doctrine  of  relation  back,  65. 
direct  and  indirect.  304.  306-308,  332-333. 
direct,  equitable  and  actual,  304-305,  308! 
indirect,  equitable  and  actual,  305. 
immediate  object  and  result  of,  305. 
ultimate  object  and  result  of,  305. 
direct,  caused  by  constructive  trust,  305-306. 
indirect,  based  upon  doctrine  of  specific  performance  306 

caused  by  owner,  by  creating  right  of  actual  conversion,  308- 30Q 
arising  from  contract  to  buy  or  sell  land,  310,  327,  361    363 
contract  as  first  step  in  conversion,  327. 
dependence  upon  right  of  specific  performance,  310-31 1 

right  lost  after  death  of  buver  or  seller.  31 1-3 13 
remedy  of  heir  in  case  of  insufficiency  of  assets  to  pay  for 

land,  313-314.  ^ 

erroneously  treated  as  equitable  as  to  seller,  314. 
arising  from  building  contracts.  314-315. 

arising  from    covenants    in    marriage   settlements,   on    principle 
315-320.  ^         ^ 

covenant  as  first  step  in  conversion,  327-328. 
authorities,  320-324 
arising  from  creation  of  trust  or  duty  to  sell  or  purchase  land, 
324-327. 
trust  or  duty  as  first  step  in  conversion,  328. 
time  when  conversion  takes  place.  325. 
cestui  que  trust  indispensable.  325-326. 

conversion  should  be  co-extensive  with  disposition   of  pro- 
ceeds, 326,  327. 
mistaken  view  of  authorities,  329, 
27 


41 8  INDEX. 

EQUITABLE   CONVERSION  —  0«//««^^. 

necessity  that  trust  or  duty  be  binding,  327. 
whether  conversion    is   commensurate  with  actual  con- 
version required,  329-358. 
early  doctrine  of  complete  conversion,  330,  332-335. 
upon  principle,  331. 
theory  of  decisions,  332-335. 
confusion   between  direct  and   indirect   conversion, 

332-333- 
Ackroyd  v.  Smithson,  335-343. 

consideration  of,  on  principle,  343,  355. 
extent  of  conversion,  dependent  on  intention,  344. 

intention  to  convert  as  from   date  prior  to   death, 

344-345- 
intention  insufficient   to  effect   conversion  prior  to 
death,  345. 
heir  not  deprived  of  converted  land  in  absence  of  dis- 
position of  proceeds,  346-348. 
impossibility  of  testamentary  conversion  resulting  in  devo- 
lution by  operation  of  law  upon  personal  representa- 
tives, 348-349- 
testamentary  conversion,  resulting  in  devolution  of  land 

as  personalty,  349-351-  t* 

summary  of  decisions  since  Ackroyd  v.  Smithson,  352- 

354-  .  ,  ,  ^.         .  .         c 

equitable  conversion  not  dependent  on  disposition  of 

proceeds  of  sale,  353. 

effect  of  Ackroyd  v.   Smithson  upon  the  conversion  of 

money  into  land,  354-355. 

consideration  of  authorities,  upon  principle,  355-358- 

effecting  creation  or  destruction  of  assets  for  the  payment  of 

debts,  359-360. 

effect  of  death  of  beneficiary  on  obligation  to  purchase  land, 

360-361. 

arising  from  bilateral  contract  for  the  purchase  and  sale  of  land, 

361-363. 

agreement  alone  sufficient  to  effect  equitable  conversion,  361- 

363-    • 
effect  distinguished  from  that  of  unilateral  covenant  in 

settlements,  361-363. 
equitable  conversion  necessarily  co-extensive  with  actual  con- 
version, 363. 
distinction    from    other   cases   of   equitable    conversion, 

363- 
not  caused  by  agreement  of   co-owners   of  land  to  join  in    sale, 

363-364. 
effect  of  testamentary  disposition  of  proceeds  of  land  to  be  sold 
as  distinguished  from  creation  of  lien  or  charge,  365-371. 
lien  or  charge  should  not  result  in  equitable  conversion,  366- 

369- 
authorities,  369-371. 
not  caused  by  settlement  of  land  in  trust  to  sell  and  reinvest  in 
land,  371-372. 
contrary  view  of  authorities,  372,  374-376. 
^  importance  of  estabhshing  true  theory,  373. 

doctrine  that  equitable  conversion  results  in  equitable  title,  377-386. 
when  conversion  is  caused  by  bilateral  contract  for  purchase  and 
sale  of  land,  378-385. 
impossibility  of  applying  doctrine  to  seller's  right,  380. 
devolution  of  right  by  will,  385. 


INDEX.  419 

EQUITABLE    CONVERSION  —  G7«/'/««^^. 

when  conversion  is  caused  by  unilateral  covenant  to  purchase  or 
sell  land,  38 1-388. 
considered  in  relation  to  fines  and  recoveries,  381-384. 
persistence  of  misconceptions  in  the  decisions,  383. 
covenants  to  sell  land  and  dispose  of  proceeds,  384,  385. 
devolution  by  will,  386-3S8. 
failure  to  perform    contract,   trust,    or   covenant  when   authorized  or 
enjoined,  388-393. 
compensation  due  to  beneficiary  upon  breach  of  contract,  388. 
compensation  due  to  beneficiary  upon  breach  of  covenant  to  pur- 
chase and  settle  land,  388-389. 
y  disposition  of  income  pending  performance  of  trust  or  duty,  389- 

391- 
duration  of  indirect  equitable  conversion,  394-407. 

co-extensive  with  right  to  actual  conversion,  394-395. 
when  equitable  conversion  takes  effect,  394-39S. 
termination  of  equitable  conversion,  395-407. 
by  actual  conversion,  395-396. 

by  termination  of  contract  or  right  under  contract,  396. 
by  exhaustion  of  gifts  made  or  covenanted  to  be  made,  397- 

398- 
b"  acquisition  of  absolute  ownership  in  money  directed  to  be 

expended,  398-406. 
through   fines   and   recoveries    and  substitutes  therefor, 

398-399- 
through  disentailing  deed,  400-403. 
intention  to  terminate  erroneously  deemed  essential,  authori- 
ties, 403-404,  407. 
practical  inconveniences  resulting,  404-405. 
true  theory,  403-404. 

when  absolute  owner  of  money  converted  into  land  has  pos- 
session, 405-406. 
when  conversion  is  caused  by  testamentary  direction  to  sell 
land  and  divide  proceeds,  406-407. 

EQUITABLE   LIENS.     See  Lie.ns. 

EQUITABLE   OBLIGATIONS.     See   Equitable   Rights   and   Obliga- 
tions ;  Equity. 

EQUITABLE    RIGHTS    AND   OBLIGATIONS, 
origin  of,  252. 

a  fiction  existing  only  in  the  eye  of  equity,  253. 

extent  and  limitation  of,  and  analogy  to  personal  obligations,  5-6,  254. 
to  what  extent  treated  as  real  obligations,  5-6. 
aequitas  agit  in  personam,  6-7. 

Roman  hypotheca,  introduced  by  equity  as  right  in  personam,  6-7. 
dependent  upon  alienable  legal  rJ5;hts,  5,  7,  255. 
derived  from  other  equitable  rights,  7-10,  258. 

indefinite  succession  of,  derived  by  sub-obligation,  7-8. 
derived  by  successive  mortgages,  8-9. 
numerous  equitable  rights  with  same  relation  to  single  legal  or  equitable 

right,  10. 
equitable  obligations,  when  imposed  upon  owner  of  legal  right,  11-12,  255- 
256. 
resulting  from  declaration  in  writing  by  holder  of  legal  right,  256. 
resulting  from  ineffective  attempt  to  make  legal  transfer  for  value,  12. 
^    resulting  trusts,  256. 
'     imposed  by  equity  alone,  13-16. 
constructive  trusts,  13. 
equity  of  redemption,  13-14,  256. 


420  INDEX. 

EQUITABLE    RIGHTS    AND    OBLIGATIONS  — CV?«//««^^. 

forfeitures  and  penalties  in  general,  14,  256. 
subrogation,  14-16,  257. 
vendor's  lien  on  real  estate,  16. 
attached  to  contracts  oi givittg,  16-17. 
insolvency  of  obligor,  16-17. 
wrongful  disposition  or  devolution  of  res,  17. 
-contracts  for  the  benetit  of  third  persons,  17. 
contracts  to  convey  land  follov^fcd  by  death  of  obligee,  17. 
negative,  imposed  by  equity  respecting  legal  rights,  258. 
violation  of  equitable  rights,  17-18. 
See  Equity. 
EQUITABLE   WASTE.     See  Waste. 

EQUITY. 

cannot  create  original  and  independent  rights,  4,  251. 

judges  in,  as  interpreters  of  the  common  law,  resulting  conflicts,  4-5,  251. 

equitable  waste,  5,  251. 
origin  of  equitable  rights,  252. 

See  Equity  Jurisdiction  ;  Equitable  Rights  and  Obligations. 

EQUITY   JURISDICTION, 

meaning  oi  jurisdiction  as  applied  to  equity,  22-23. 

exclusive  and  concurrent,  significance  of  terms  as  applied  to  equity,  23. 

power  of  equity  to  assume  jurisdiction,  23. 

object  of  equity  in  assuming  jurisdiction,  23-24,  28. 

extent  of  equity  jurisdiction,  23-24. 

injunctions,  28-35. 

against  trespass,  waste,  nuisance,  30-31. 

question  of  title,  raised  in  connection  with  waste,  32-33. 

to  prevent  multiplicity  of  suits,  34-35- 

bills  of  peace,  35. 
accounting,  in  connection  with  injunctions,  36. 
with  respect  to  damages,  38. 
to  prevent  unjust  enrichment,  38-39. 
over  affirmative  contracts,  for  specific  performance,  47. 
over  obligations  to  account,  89. 
over  bills^of  equitable  assumpsit,  loi,  108-109. 
over  creditors'  bills,  125-126,  132,  139-140. 
to  relieve  against  penalties  and  forfeitures,  14,  141-142. 
over  rights  of  creditors  of  decedent  against  heir,  14S-150. 
over  bills  by  legatees  and  next  of  kin,  155-157. 
over  rents,  211-21 5. 
over  predial  tithes,  217. 
based  on  inadequacy  of  legal  remedy,  252. 
based  on  absence  of  independent  legal  right,  253. 
See  Creditors'   Bills;  Equitable  Assumpsit,  Bills  of;  Injunc- 
tions; Multiplicity  of  Suits. 
ERRORS  AND  OMISSIONS  EXCEPTED,  119. 
EXCLUSIVE  JURISDICTION, 

meaning  of,  as  applied  to  equity,  23. 

EXECUTORS    AND    ADMINISTRATORS, 

nature  of  obligation  to  legatees  and  next  of  kin,  97. 

accounting  of,  pursuant  to  defense  at  law  of  want  of  assets,  132-139. 

inventory  of  executor,  139,  140. 

judgments  against,  by  creditors  of  the  estate,  distmguished  from  judgments 

against  heirs,  147-148. 
duties  of,  154-155- 

whether  executor  may  file  bill  for  administration  of  estate,  179-lSo. 
duty  to  pay  legacies,  origin  of,  225. 


INDEX.  42 1 

EXECUTORS    AND    ADMINISTRATORS  —  O;/////?/^^. 

duty  imposed  upon  administrators  by  the  Statute  of  Distril^ution,  226. 

predecessors  in  Roman  law.  230. 

of  vendors  of  land,  right  to  receive  purchase  money,  2r>8-269. 

of  owners  of  land  subject    to  option,  rights  as  to  purchase  money,  269- 

273. 
relation  to  estate,  and  to  creditors,  legatees,  and  next  of  kin.  274. 
statutes  regulating  disposition  of  residuary  personalty  undisposed  of,  274, 

277. 
dutv  of  executors  analogous  to  that  imposed  by  Statute  of  Distributions, 

277. 
as  trustees  of  residuary  personalty  for  next  bf  kin.  277. 
personal  representative  as  such  never  a  trustee.  278. 

rio-hts  and  obligations  respecting  contracts  for  land  after  death  of  buyer  or 
seller,  311-313- 
right  of  judgment  creditor,  145. 
common-law  execution  against  land,  148. 
inadequacy  of  remedy,  149. 
right  of  creditors  by  matter  of  record,  150-15 1. 
^See  Equitable 'Conversion. 


F. 

FACTORS, 

liability  of,  to  account  in  equity.  92. 

liability  of,  in  case  of  consignment  on  joint  account,  95-96. 

CC   FIDUCIARY    RELATION, 

essential  requisite  to  obligation  to  account,  80. 

FINES  AND   RECOVERIES, 

in  relation  to  equitable  estates  tail,  3S1-384,  39S-399- 
FORFEITURE, 

as  remedy  for  non-payment  of  rent,  202-203. 

statutory  extension  of  remedy  for  recovery  of  rent  in  England,  205. 
FORFEITURES.     See  Pevalties  and  Forfeitures. 
FRANCHISES    AND    MONOPOLIES, 

incorporeal  rights  created  by  the  state,  234-237. 

in  the  United  States,  236. 

inalienability  of  right,  236. 

how  infringed,  249. 

FRAUD, 

equitable  remedy  when  property  is  obtained  by,  13. 

to  impeach  compromise  of  cross-claims  or  account  stated,  120. 


GOOD-WILL.     See  Trademarks. 

GUARDIANS, 

obligation  of,  to  account,  75. 
account  of,  in  equity,  91. 


H. 


HAERES    FACTUS,  230. 
HAERES    NATUS,  230. 

HEIR. 

when  liable  for  specialty  debts  to  extent  of  inheritance,  145-147.  _ 
judgments  of  specialty  creditors   against,   distinguished  from   judgments 
against  executor,   1 47-1 48. 


422  INDEX. 

HEIR  —  Continued. 

heir  or  devisee  made  defendant  to  bill  of  creditors  of  decedent,  184-186. 
mode  of  succession  to  land,  273-274. 

rights  and  obligations  respecting  contracts  for  land  after  death  of  buyer  or 
seller,  311-313. 
See  Equitable  Conversion. 

HYPOTHECA, 

introduced  into  English  law  by  equity,  6-7. 

in  the  Roman  law,  nature  and  development,  194-195,  222-223. 

collateral  nature  of  obligation,  195. 

in  English  law,  195-196. 

adopted  in  the  admiralty  law,  223. 

HYPOTHECATION, 
equitable,  12. 
created  by  the  common  law,  195-197. 


I. 

IMPLIED  CONDITIONS  PRECEDENT, 

breach  of,  not  a  bar  to  specific  performance  in  equity,  55. 

INADEQUACY   OF   LEGAL   REMEDY, 

as  basis  of  equity  jurisdiction  in  general,  252. 

as  basis  of  equity  jurisdiction  for  specific  performance,  47. 

in  contracts  of  giving,  48. 

INCIDENTAL    RELIEF    IN    EQUITY, 
in  connection  with  injunctions,  35-36,  67. 
against  tenant,  215. 

INCORPOREAL  PROPERTY, 

rents  granted  out  of,  jurisdiction  of  equity  over,  213. 

INCORPOREAL   RIGHTS, 

any  injury  to,  constituting  nuisance,  31. 
infringement  of,  288. 
See  Rights. 

INDEBITATUS    ASSUMPSIT, 
inconsistency  of  language,  86. 

not  applicable  to  enforcement  of  obligation  to  account,  85,  86-88. 
against  attorney  at  law  or  sheriff,  98. 
perversion  of  count  to  cover  cases  of  accounts  stated,  123. 

respecting  cross-demands,   123. 
origin  of  count,  123. 

INJUNCTIONS, 

foundation  of  jurisdiction,  28-30. 
temporary,  28. 
I      against  waste,  trespass  to  land,  nuisance,  30-33. 

against  acts  in  the  nature  of  waste,  pending  settlement  of  title,  32-33. 
against  nuisances,  difficulties  involved,  33-34. 
against  infringement  of  patents  and  copyrights,  34. 
to  avoid  multiplicity  of  suits,  34-35. 
bills  of  peace,  35. 
against  threatened  torts,  35. 

against  use  of  legal  cause  of  action  or  defense,  258. 
mandatory,  42. 

as  specific  performance  of  negative  duties,  41. 

ordinary  mode  of  exercising  jurisdiction  over  affirmative  torts  and  neg 
ative  contracts,  67. 


INDEX.  423 

INJUNCTIONS  —  Continued. 

against  suit  at  law,  in  connection  witli  bills  of  equitable  assumpsit,  105. 
comijined  with  bill  of  equitable  assumpsit,  107. 
by  creditors  against  executor,  172-177. 

granted  in  administration  suit  upon  motion  of  executor,  176-177. 
granted  in  administration  suit  upon  motion  of  plaintiff  creditor,  177. 
against  suit  at  law  against  heirs  or  executors,  186. 

INNKEEPERS, 

duty  toward  guests,  226. 
INSURANCE    BROKERS, 

liability  to  underwriter  and  to  assured,  94. 

INTELLECTUAL   CREATIONS, 
form  of  incorporeal  property,  233. 


J. 

JUDGMENT   CREDITORS, 

rights  in  crops  upon  deceased  debtor's  land,  144. 

right  to  have  deceased  debtor's  land  extended,  144-145. 

priority   of    creditor   recovering    judgment    or    decree    against   executor, 

166-167. 
distinction   between  judgments   against   executors   and    against    debtors, 

166-167. 

JUDGMENTS, 

creating  debts  of  record,  141. 
constituting  lien  on  land,  223. 

JURISDICTION, 

meaning  of  term  as  applied  to  equity,  22-23. 
See  Equity  Jurisdiction. 


L. 

LACHES, 

as  ground  for  refusing  specific  performance,  53. 

LAPSE.    See  Equitable  Conversion. 

LATERAL   SUPPORT, 

from  adjoining  land,  nature  of  right,  244-245. 

LEGACIES, 

equity  procedure  for  payment  of,  out  of  land,  190-191. 

origin  of  executor's  duty  to  pay,  225-226. 

in  Roman  law,  230. 

pecuniary,  constituting  charge  upon  land,  284. 

charged  upon  land,  286. 

LEGAL   RIGHTS,  1-18,  219-238. 
absolute  or  relative,  i,  3,  219. 

use  of  terms,  229,  n. 
violation  of,  tort  or  breach  of  obligation,  3. 
absolute  rights,  personal  or  rights  of  property,  i,  220-221. 
personal  rights,  nature  and  origin,  220. 
of  property,  nature  and  origin,  220-221. 

corporeal  and  incorporeal,  meaning  of  distinction,  220. 

cotenancy,  221. 

remainders  and  reversions,  221. 

division  of  real  property  among  several  owners,  221. 


424  INDEX. 

LEGAL   RIGHTS —Ctf«//««^^. 

relative  rights,  either  obligations  or  duties,  1-3,  221-230. 

obligations,  personal  or  real,  how  imposed,  2-3,  221-224. 

real  obligations,  when  sufficient  for  owner  to  impose  obligation  on 
himself,  221-224. 
against  land,  imposed  by  grant  and  reservation,  222. 
against  personalty,  imposed  by  delivery  of  possession,  222. 
origin  of  real  obligations  in  Roman  law,  2,  222. 
origin  of  easements  and  profits  d  prendre  in  Roman  servi- 
tudes, 222. 
Roman  pignus   and  hypotheca ;  represented  in  our  law   by 

pledges  and  liens,  2,  223. 
easements  and  profits  in  gross,  analogous  to  Roman  personal 
servitudes,  224. 
violation  of  obligations,  Lumley  v.  Gye  j  conditional  obligations,  3. 
duties,  public  or  private,  224-228. 

distinguished  from  obligations,  224. 
of  executor  to  pay  legacies,  225-226. 
of  administrator  to  distribute,  226. 
to  set  apart  tithes,  226. 
of  heir  to  assign  dower,  226. 

of  travellers  upon  the  public  highways  or  navigable  waters,  226. 
imposed  upon  common  carriers  and  innkeepers,  226. 
of  care  imposed  upon  professional  men,  226. 
domestic  duties,  227. 

of  corporations  toward  stockholders,  227. 
of  care  to  avoid  injury  to  others,  227. 
distinguished  from  personal  rights,  228. 
how  far  absolute  property  rights  with  pecuniary  value,  229-230. 

distinction  between  personal  and  real  obligations  and  duties,  230. 
absolute  rights, 

incorporeal,  creation  and  classification,  230-237. 
powers  and  licenses,  231-232. 
rights  dependent  upon  a  condition,  232. 
in  intellectual  creations,  232. 
created  by  the  state,  233. 

advowsons,  tithes,  offices,  dignities,  franchises,  patents  and 
copyrights,  233-237. 
negative  and  affirmative  rights,  classification  of,  237-240. 
distinctions  between,  239-240. 
negative  rights,  nature  of,  237. 

negative  real  obligations,  impossibility  of,  237-238. 

authorities,  238. 
negative  duties,  impossibility  of,  238. 
LEGATEES, 

bills  by.  jurisdiction  of  equity  over,  155-156. 
pecuniary,  administration  on  bill  filed  by,  164-166,  170. 
rights  of,  against  personal  representative,  274. 
6>^  Residuary  Legatee;  Legacies. 

LICENSES, 

creation  and  operation  of,  231-232. 

LIEN.S, 

as  example  of  real  obligation,  2,  196. 

on  beasts,  damage  feasant,  2,  n. 

of  landlord,  for  payment  of  rent,  2,  n. 

of  vendor  of  re?l  estate,  for  purchase  money,  16. 

no  judicial  remedy  furnished  to  creditor,  196-197. 

relation  of,  to  Roman  hypotheca,  223. 

resulting  from  judgment  or  recognizance,  223. 


? 


INDEX.  425 


M. 

MARKETABLE   TITLE, 

as  relating  to  specific  performance  of  contracts,  54. 

as  to  part  only  of  land  contracted  for,  54. 

title  defective  as  to  whole  of  land  contracted  for,  54. 

lack  of,  always  of  the  essence  as  bar  to  specific  performance,  58. 
MARSHALLIxN'G,    15-16. 
MINING, 

conversion  of  realty  into  personalty,  302. 
MISFEASANCE    AND    NON-FEASANCE, 

in  relation  to  torts  and  breaches  of  oi^ligation,  39. 

MONOPOLIES.    See  Franchises  and  Monopolies. 
MORTGAGES, 

successive,  creating  numerous  equitable  rights,  8. 
redemption  in  equity,  13-14,  256-257. 

sale  before  and  after  death  of  mortgagor,  devolution  of  surplus,  266. 
MULTIPLICITY    OF    SUITS, 

avoidance  of,  as  basis  of  actions  in  rein  founded  upon  ownership,  22. 
as  basis  for  injunction  in  equity,  34. 
as  basis  of  incidental  relief  by  accounting  for  profits,  6j. 
as  basis  for  recovery  in  equity  of  debt  resulting  from  accounting,  91. 
as  basis  of  decree  for  payment,  upon  accounting  of  executor,   143-144. 
as  ground  for  jurisdiction  over  creditor's  bills  against  heirs  or  devisees 
of  debtor,  152-153. 

MUSICAL   CO.MPOSERS, 

rights  in  compositions,  233. 
MUTUALITY, 

doctrine  of,  applied  to  specific  performance  of  contracts,  50-51. 


N. 

NEGATIVE    CONTRACTS,   67-72. 

NEGATIVE    RIGHTS    AND    OBLIGATIONS, 
nature  of,  237-238. 

impossibility  of  negative  real  obligation,  237-238. 
imposed  by  equity  on  owner  of  legal  right,  258. 
See  Rights. 

NEGATIVE    AND    AFFIRMATIVE    RIGHTS   AND   OBLIGATIONS, 
in  relation  to  specific  performance,  41-42. 
See  Rights. 

NEGLIGENCE,  • 

duty  to  avoid,  227. 
NEXT   OF    KIN, 

bills  by,  jurisdiction  of  equitv  over,  155-156. 

administration  of  decedent's  estate  in  equity  at  suit  of,  163-164. 

ascertainment  of,  by  court  of  equity  in  administration  suit,  163. 

mode  of  succession  of,  to  personal  estate,  273-274. 

not  to  benefit  from  equitable  conversion  of  land  in  absence  of  gift  of  pro- 
ceeds. 346-34S. 

NON-FEASANCE, 

torts  consisting  in,  39. 
See  Misfeasance  and  Non-feasance. 


426  INDEX. 

NUISANCE, 

defined  and  distinguished  from  trespass,  31. 

difficulties  involved  in  enjoining,  33. 

carrying  on  offensive  trade,  34. 

caused  by  erection  of  costly  buildings,  34. 

infringement  of  patents  and  copyrights,  34. 

abatement  of,  by  courts  of  equity,  37-38. 

permanent,  damages  decreed  for,  after  assessment  on  a  feigned  issue,  38. 


O. 

OBLIGATIONS, 

distinguished  from  duties,  224. 
See  Equitable  Rights  and  Obligations  ;  Legal  Rights. 

OFFICES,  233-234. 

.       OPTIONS, 
/^  for  the  purchase  of  land,  unwarrantable  extension  of  doctrine  of  equitable 

C-^  conversion  to,  269-273,  362. 


P. 

PARTNERS.    See  Co-partners. 

PATENTEE, 

relation  of,  with  manufacturer,  93-94. 

PATENTS    AND    COPYRIGHTS, 

classification  of,  30. 

infringement  of,  constituting  nuisance,  34. 

accounting  in  connection  with  injunctions  against  infringement  of,  36. 

nature  and  origin  of,  237. 

infringement  of  copyrights,  249. 
PEACE,    BILLS    OF.     See  Bills  of  Peace. 

PENALTIES    AND    FORFEITURES, 

equitable  relief  against,  14,  257. 

connected  with  debts  of  record  and  specialty  debts,  141-142. 

connected  with  recovery  of  land  by  condition  subsequent,  202-203. 

connected  with  recovery  of  rent  by  right  of  entry,  204. 
PERSONAL   CHATTELS.     See  Chattels  Personal;  Personal  Prop- 
erty. 
PERSONAL   PROPERTY, 

devolution  of.  upon  death  of  owner,  274. 
See  Chattels  Personal;  Equitable  Conversion. 

PIGNUS, 

in  Roman  law,  nature  and  development,  194-195,  222-223. 
recognition  in  our  law.  6,  194-195,  223. 
collateral  nature  of  obligation,  195. 

PLEDGES, 

origin  in  V^ovazxy  pignus ,  195,  223. 
power  of  sale  by  pledgee,  196-197. 

POWERS, 

creation  and  operation,  231. 

PREDIAL  TITHES, 

devolution  of  rights  in,  upon  death  of  owner,  199. 
as  a  principal  real  obligation,  199. 
comparison  of,  with  rent,  215. 


INDEX.  427 

PREDIAL   'Y\'YW^'$>  —  Continued. 
obligation  created  by  law  alone,  216. 
payable  in  kind,  to  be  set  apart,  216. 

created  by  canon  law,  and  first  enforced  by  personal  obligation,  216-217. 
acquisition  of  jurisdiction  over,  by  equity,  217. 
absence  of  "  real  "  security  for  performance  of  obligation,  217-218. 
duty  to  set  apart,  imposed  by  the  canon  law,  226. 
as  incorporeal  right  created  by  the  state,  233. 

PREFERENCES, 

by  executors,  not  prevented  by  equity,  178-179. 

PREVENTION, 

remedy  by,  exceptional  nature  of,  41. 

PRIVITY, 

as  requisite  to  obligation  to  account,  80-82. 

between  cotenants,  94. 

between  co-owners  upon  tortious  sale  of  property  by  one  co-owner,  96. 

PROFESSIONAL    MEN, 

duty  of,  to  exercise  care,  226. 

PROFITS  A    PRENDRE, 

origin  in  Roman  servitudes,  222. 

PROFITS    IN    GROSS, 

relation  of,  to  Roman  servitudes,  224. 

PUBLISHERS, 

nature  of  liability  to  author,  93. 


QUIA  EMPTORES,  STATUTE  OF.     See  Statute  of  Quia  Emptores. 


R. 

RAILROADS, 

compelled  by  equity  to  perform  contract,  47,  n. 

United  States  statute  authorizing  mortgage  of  property  of,  236. 

REAL   OBLIGATIONS, 

origin  of,  in  Roman  law,  192-193. 

present  necessity  of,  193. 

two  methods  of  obtaining  security  upon  property,  194. 

pigntis  and  hypotheca,  i94-ig5. 

regarded  as  collateral  obligations,  195. 
place  in  English  law,  195-196. 
liens,  196-198. 

remedy  afforded  by  the  law  in  case  of  pledges,  hypothecations,  and  liens, 
196-197. 
to  holder  of  obligation,  196-197. 
to  obligor,  197-198. 
as  principal  obligations,  rent  and  predial  tithe,  199-283. 
rent,  199-215. 

created  by  grant  or  reservation,  199. 

rent  reserved,  creation,  nature  and  incidents,  200. 
rent  granted,  200. 

effect  of  statute  quia  emptores,  200-201. 
common-law  remedies  for  recovery  of,  201,  204. 
right  of  assize,  201. 
right  of  annuity,  201-202. 
covenant,  202. 


428  INDEX. 

REAL   OBLIGATIONS  —  Continued. 

debt,  202. 
distress,  202. 

condition  subsequent  for  forfeiture  on  non-payment  of,  202-203. 
right  of  entry,  203-204. 
attornment,  204. 
legislation  to  aid  recovery  of,  204-206. 

in  England,  by  extension  of  distress  and  forfeiture,  205. 
in  the  United  States,  205-206. 
adequacy  of  legal  remedies,  207-210. 
classification  of  rents,  207-208. 

rents  reserved  upon  ordinary  lease,  207,  208. 
annual  rent  reserved  upon  grant  for  long  term,  207,  209. 
grant  of  rent  without  grant  of  land,  207-208. 
when  common-law  remedy  is  sufficient,  208. 
when  common-law  remedy  is  insufficient,  209-210. 
annuity,  in  relation  to  annual  rents,  210. 
equitv  jurisdiction  over,  211-215. 

legal  remedies,  how  far  adequate,  21 1. 
legal  remedies,  where  inadequate,  211. 
authorities,  21 1-215. 

when  rent  is  reserved  out  of  incorporeal  property,  213. 
when  land  from  which  rent  issues  cannot  be  identified,  213. 
when  owner  of  rent  cannot  distrain,  213-214. 
form  of  relief  granted  by  equity,  214-215. 
sale  of  land,  214. 

appointment  of  receiver  to  apply  net  income  to  rent,  214. 
incidental  relief  against  tenant,  215. 
predial  tithes,  215. 

comparison  with  rent,  215-218. 

obligation  created  by  the  law  alone,  216. 
payable  in  kind,  set  apart  by  tithe-payer,  216. 
origin  in  and  enforcement  by  the  canon  law,  216-217. 
acquisition  of  jurisdiction  by  equity,  217. 

absence  of  "  real  "  security  for  performance  of  obligation,  217-218. 
nature  of  infringement  of  right  created  by,  242. 
cannot  be  created  by  equity,  254. 
charge  upon  land,  282. 
rent  charge  as  example  of,  283. 
See  Rights. 

REAL    PROPERTY. 

contract  to  convey,  devolution  of  right  on  death  of  obligee,  17. 
doctrine  of  mutuality  applied  to  contracts  for.  51-52. 

destruction  of,  before  or  after  time  for  performance  of  contract  of  sale,  59-63. 
of  deceased  debtor,  144-153. 

division  of  ownership  and  rights  of  property  in,  221,  243. 
method  of  imposing  obligations  upon,  221-222. 
nature  of  property  right  in,  243-244. 
rights  of  owner  of   in  land  of  another,  244-247. 
right  to  support  of  land  or  buildings  from  adjoining  land,  244-246. 
rights  in,  with  respect  to  water  courses,  245. 

rights  in,  determination  of  infringement  of,  by  place  of  infringement,  247. 
devolution  of,  upon  death  of  owner,  273. 

specially  charged  with  the  payment  of  debts  and  pecuniary  legacies,  286. 
.S"^^  Specific  Performance;    Creditors'  Bills;    Equitable  Con- 
version. 

RECEIVERS, 

obligation  of,  to  account,  75. 

appointed  by  equity  to  receive  income  from  land  subject  to  rent,  214. 


INDEX.  429 

RECOGNIZANCE, 

creating  debt  of  record,  141. 

not  impeachable,  150. 

conusees  of,  right  to  have  debtor's  land  extended,  150. 

constituting  lien  on  land,  223. 

RECORD, 

debts  of,  140-  142. 

not  impeachable,  150. 
creditor's  right  of  extent,  150-151. 

creditor's  right  to  bill  in  equity  against  owner  of  land  of  deceased 
debtor,  151-152. 
RECOVERIES.     See  Fines  and  Recoveries. 

RELATION, 

doctrine  of,  as  basis  for  accounting  in  equity,  44. 

effect  of  doctrine  in  fixing  burden  of  loss  by  destruction  of  subject-matter 
of  contract,  60-61. 
doctrine  of  Enghsh  courts,  60-61. 
doctrine  of,  in  connection  with  equitable  conversion,  65. 
misapplication  of  doctrine  to  options  for  the  purchase  of  land,  272-273. 

RELIEF, 

use  of  term  in  equity,  19. 

REMAINDERS    AND    REVERSIONS,  221. 

REMEDIES, 

ways  in  which  actions  protect  rights,  19. 
actions,  i>i  personam  and  in  rem,  distinctions,  20. 
actions  in  rem  founded  upon  ownership,  20-22. 
four-fold  division  of  jurisdiction  over  remedies,  22. 
exclusive  and  concurrent,  in  what  sense  equitable  remedies  are,  22-23. 
operation  of  legal  and  equitable  remedies,  comparison  of,  24-25,  26. 
common  law  remedies,  in  personam  or  in  rem,  classification  of,  27. 
replevin,  27. 
detinue,  27-28. 
deficiencies  in  common  law  remedies  supplied  by  equity,  28. 
injunctions,  foundation  of  jurisdiction,  28-35. 
accounting  for  past  profits  in  connection  with  injunction,  35-36. 
specific  reparation  of  torts.  36-37. 
permanent    nuisance,    damages   decreed    after    assessment    upon    feigned 

issues,  3S. 
against  representatives  of  tort-feasor,  to  compel  restoration,  when  no  action 
at  law,  38-39. 
See  Accounts    and   Accounting;    Creditors'  Bills;    Equitable 
Assumpsit,  Bills  of;     Injunctions;  Specific  Performance. 

RENT, 

as  a  principal  real  obligation,  199. 
devolution  of  rights  in,  upon  death  of  owner,  199. 
created  by  reservation  or  by  grant,  199-200. 
common-law  remedies  for  recovery  of,  201-204. 
necessity  of  attornment  to  assignee  of,  204. 
legislation  to  aid  recovery  of,  204-206. 

in  England,  205. 

in  the  United  States,  205-206. 
forms  of,  classified,  207. 

consideration  of  common-law  remedies  as  applied  to  various  classes  of, 
208-210. 

when  sufficient,  208-209. 

when  insufficient,  209-210. 
jurisdiction  of  equity  over,  authorities,  211-215. 

when  rent  is  reserved  out  of  incorporeal  property,  213. 


430  INDEX. 

RENT  —  Continued. 

when  land  from  which  rent  issues  cannot  be  identified,  213. 

when  owner  of  rent  cannot  distrain,  213. 

form  of  relief  granted  by  equity,  214. 
comparison  of,  with  tithe,  215-218. 
as  instance  of  legal  real  obligation,  283. 
following  analogy  of  crops  with  respect  to  conversion,  300-301. 

REPLEVIN,  27. 

RESCISSION, 

after  breach,  as  opposed  to  specific  performance,  58. 

RESIDUARY    LEGATEE, 

administration  of  decedent's  estate  on  bill  by,  158-163. 

in  relation  to  lapsing  of  gifts  from  proceeds  of  land  or  charged  upon  land, 
294-295. 
RESULTING  TRUSTS,  12,  256. 
RIGHTS.    See  Equitable  Rights  and  Obligations;  Legal  Rights. 

RIGHTS  IN  REM, 

why  equity  cannot  create,  6. 
See  Legal  Rights. 

ROMAN    LAW, 

doctrine  of  artificial  legal  personality,  127-128. 
real  obligations  originating  in,  192-195,  222. 
as  origin  of  executor's  duty  to  pay  legacies,  225-226. 
haeres  f actus  and  haeres  natus,  230. 


S. 

SALES, 

without  previous  contract,  261-262. 

SECURED    CREDITORS, 

bill  filed  by,  on  behalf  of  unsecured  creditors,  183,  n. 

relief  in  equity  against  deceased  debtor's  estate,  187-188. 

when  debtor  dies  insolvent,  bankruptcy  rule  applied,  187-188. 
SERVITUDES, 

Roman,  how  represented  in  our  law,  222-224. 

SET-OFF.     See  Cross-claims  or  Set-off. 

SETTLEMENTS, 

sale  of  settled  estates  subject  to  mortgage,  and  disposition  of  surplus,  266. 

seizure  by  the  State  of  settled  lands,  and  disposition  of  proceeds,  266. 

sale  of  settled  lands  under  power  and  disposition  of  proceeds,  266. 

covenants  in.  as  cause  of  equitable  conversion,  on  principle,  315-320,  328. 

nature  of,  315-320. 

effect  of  covenant  in,  upon  covenantor's  estate,  320. 

covenants  in,  as  cause  of  equitable  conversion,  320-324. 

covenants  in,  distinguished  from  bilateral  contracts  for  the  purchase  and 

sale  of  land,  361-362. 
of  land,  in  trust  to  sell  and  reinvest  in  land,  371-376. 
covenants   for   purchase  and   settlement  of   lands,    whether   resulting   in 

equitable  estate,  381-3S9. 
termination  of  equitable  conversion  under,  397-404. 

See  Equitable  Conversion. 

SHERIFFS, 

obligation  of,  to  account  to  judgment  creditors,  98. 

SPECIALTY    DEBTS, 

classification  of,  140-141. 

rights  of  creditors  against  heir  bound  to  the  extent  of  inheritance,  145-147. 


INDEX.  43 1 

SPECIFIC    PERFORMANCE, 

more  accurately  termed  specific  reparation  when  applied  to  contracts,  40. 
in  relation  to  negative  and  affirmative  duties,  41-43- 

impracticability  of  enforcing  strict  performance    of   affirmative  con- 
tracts, 42-43. 
mandatory  injunctions,  42. 
specific  reparation  supplemented  by  accounting  for  damages,  43. 
mutuality  of  relief  in  bilateral  contracts,  44-46- 

difficulty  in  procedure,  46. 
pre-requisites  of  assumption, of  jurisdiction  for,  over  affirmative  obligations, 
47-49. 
inadequacy  of  legal  remedy  in  specific  contracts  of  giving,  48. 
usually  dependent  on  nature  of  subject-matter,  49. 
land,  vessels,  chattels  personal,  49. 
mutuality,  50-51. 

as  applied  to  bilateral  contracts  where  performance  is  not  mutually 

dependent,  50. 

as  applied  to  bilateral  contracts  where  performance   is  mutually  de- 
pendent, 51. 
conditions  for  relief  by  way  of,  52-54. 

sufficiency  of  consideration,  52. 

good-faith,  52-53. 

diligence  of  plaintiff,  53. 

ability  of  defendant  to  perform,  53. 
marketable  title,  54-55. 

when  vendor  can  make  good  title  only  as  to  part  of  land,  54. 

when  title  is  defective  as  to  the  whole,  54. 
when  contract  rend^-red  impossible  without  vendor's  fault,  55. 
not  barred  by  breach  of  implied  conditions  precedent,  55-56. 
bill  filed  by  plaintiff"  after  breach,  57. 

when  plaintift's  only  obligation  is  to  pay  money,  57. 

when  time  is  of  the  essence,  57. 

burden  of  showing  that  breach  is  of  the  essence,  58. 

defective  title  always  of  the  essence,  58. 

rescission  as  opposed  to  specific  performance,  58. 
of  contract   for    conveyance    of   real   estate,    followed   by  destruction   of 
subject-matter,  59-63. 
,  -  doctrine  of  English  courts,  60-63. 
/''  due  in  part  to  doctrine  that  a  contract   to  convey  land  is  in  equity 

V  an  actual  conveyance,  62-63. 

\  due  in  part  to  misapplication  of  doctrine  of  equitable  conversion, 

63-65. 
of  legal  duties  not  amounting  to  obligations,  65. 

distinguished  from  specific  performance  of  affirmative  contracts,  65. 
of  negative  contracts  and  affirmative  torts,  67-6S. 

analogous  in  mode  of  equitable  relief,  by  injunction,  67. 
not  analogous  in  extent  of,  or  reason  for  exercise  of  jurisdiction,  68. 
of  negative  contracts,  68. 

where  negative  covenant  or  promise  is  unilateral,  68-69. 

where  negative  covenant  or  promise  is  independent,  69. 

where    consideration    for    the    covenant   or    promise    has    been   fully 

performed,  69-70. 
where  consideration  for  the  covenant  or  promise  has  been  partially 

performed,  70. 
partly  bilateral  and  partly  unilateral,  70. 
where  negative  covenant  or  promise  constitutes  only  part  of  one  side 

of  contract,  71. 
negative  in  substance  though  expressed  affirmatively,  72. 
in  relation  to  obligation  to  set  apart  tithes,  217-218. 
doctrine  of,  in  relation  to  equitable  conversion,  306,  310,  325. 


432  INDEX. 

SPECIFIC    PERFORMANCE—  Continued. 

of  building  contracts,  in  relation  to  equitable  conversion,  314-315. 

right  of,  dependent  upon  complainant's  readiness  to  perform,  388. 
SPECIFIC    REPARATION, 

of  torts,  difficulties  involved  in,  36-37. 

by  courts  of  equity,  seldom  attempted,  37. 

to  be  distinguished  from  specific  performance,  40,  43. 
See  Specific  Performance. 
STAKE-HOLDER, 

liability  to  account,  98. 

STATUTE    OF    DISTRIBUTIONS, 

vesting  in  ordinary  exclusive  jurisdiction  over  rights  of  next  of  kin,  156. 
imposing  duty  of  distribution  upon  administrator,  226. 
origin  or  administrator's  duty  to  next  of  kin,  274,  277. 

STATUTE    OF   QUIA    EMPTORES, 
effect  of,  upon  creation  of  rent,  200-201. 

STATUTES, 

creating  debt  of  record,  141.  ■* 

not  impeachable,  150. 

conusees  of,  right  of  extent  of  debtor's  land,  151. 
STOCK-BROKERS, 

liability  to  account  in  equitv,  92. 

nature  of  liability  to  customer,  93. 
STOCKHOLDERS, 

duty  of  corporations  toward,  277. 
SUBROGATION, 

rights  of,  created  by  equity,  14-15,  256-257. 

marshalling,  15-16. 

employed  by  equity  to  subject  land  to  claims  of  simple  contract  creditors, 
189-190. 

SURETYSHIP, 

doctrine  of  subrogation,  14-16,  256-257. 

in  connection  with  real  obligations  under  the  Roman  law,  195. 


T. 

THURLOW,    LORD, 

decision  of,  in  Ackroyd  v.  Smithson,  335-342. 

decision  of,  in  Robinson  v.  Taylor,  344-345. 
TIMBER, 

conversion  of,  into  personaltv,  301. 

ownership  and  right  to  cut,  vested  in  owner  of  inheritance,  301. 

intervention  of  equity  to  cut  and  sell,  for  benefit  of  all  concerned,  301-302. 

wrongful  severance  of,  by  life-tenant,  302. 
TIME, 

when  of  the  essence,  ^"j. 
TITHES.     See  Predial  Tithes. 

TORTS, 

nature  of,  239. 

negative  and  affirmative,  239-240. 

analogous  to  affirmative  and  negative  contracts,  67. 
every  breach  of  duty  a  tort.  240. 
distinguished  from  breaches  of  obligation,  241. 
whether  committed  by  interference  with  p-rsonal  obligation,  3. 
equitable,  when  wrongly  so  called,  5,  251-252. 
to  equitable  obligees,  17-18. 


INDEX.  433 

TORTS  —  Continued. 

classification  of,  with  respect  to  jurisdiction  of  equity,  30. 

threatened,  injunction  against,  35. 

accounting  for  profits  from  commission  of,  in  connection  with  injunction, 

35-36- 
specific  reparation  of,  36-37. 

recovery  of  unjust  enrichment  from  representative  of  tort-feasor,  38-39. 
consisting  in  non-feasance,  39. 

committed  by  infringement  of  right  created  by  real  obligation,  241-242. 
affirmative,  difficulty  of  identifying  right  infringed  by,  242. 
against  land  and  rights  in  land,  determined  by  place  of  commission  of  tort, 

247. 
consisting  in  infringement  of  trade-mark,  nature  ot,  250. 

See  Wrongs. 
TRADE-MARKS, 

nature  of  right  in,  250. 

nature  of  tort  committed  by  infringement  of,  250. 

TRESPASS    TO    LAND,    %^ 
jurisdiction  of  equity  over,  31. 
accounting  incidental  to  injunction  against,  36. 

TRUST, 

to  purchase  or  sell  land, 
creation  of,  11. 

resulting  from  declaration  in  writing  by  holder  of  legal  right,  256. 
passive  constructive  trust  as  means  of  enforcing  direct  equitable  conver- 
sion, 306. 
active  and  passive,  in  relation  to  direct  and  indirect  equitable  conversion, 

306. 
as  basis  of  equitable  conversion,  324-327,  328-329. 
extent   of    equitable    conversion   caused    by    testamentary   trust   for   sale, 

V       329-358- 

\        See  Equitable  Conversion. 

TRUSTEE, 

accountability  of,  to  cestui  que  tfusf,  97. 

executor  as  such  never  a  trustee,  278. 

effect  of  devise  of  land  to,  with  bare  direction  or  power  to  sell,  279-2S0. 


V. 

VESSELS, 

contract  for,  subject  of  specific  performance,  49. 


W. 

WASTE, 

equitable,  semblance  to  equitable  tort,  5,  251. 
denned  and  distinguished  from  trespass,  30-31. 
acts  in  the  nature  of,  raising  questions  of  title,  32-33. 
accounting  in  connection  with  injunction  against,  36. 
permissive,  cannot  be  specifically  repaired  in  equity,  66. 

WATERCOURSES, 

nature  of  right  in,  245. 

WRONGS, 

torts  and  breaches  of  obligation,  239. 

breaches  of  obligation,  negative  and  aflSrmative,  241. 
torts,  negative  and  affirmative,  239,  240-250. 
every  breach  of  duty  a  tort,  240. 
28 


434  INDEX. 

WRONGS  —  Coniinued. 

torts  distinguished  from  breaches  of  obligation,  241. 
affirmative  torts  involved  in  infringement  of  relative  right  regarded 
as  absolute,  241-250. 
reLition  between,  and  rights  infringed,  242. 
difficulty  of  identifying  right  infringed  by,  242-243. 
rights  of  property  in  land,  division  of,  243-247. 
nature  of,  244. 
rights  in  land  of  another,  244-246. 

to  support  of  land  or  buildings  from  adjoining  land, 
244-246. 
with  respect  to  watercourses,  245. 

infringement  of,  to  be  determined  by  place  of  infringe- 
ment, 247. 
infringement  of  incorporeal  rights,  248-250. 
literary  and  dramatic  compositions,  248. 
monopolies,  franchises,  copyrights,  249. 
trade-marks,  250. 


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